House File 2376
HOUSE FILE
BY CONNORS
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to workers' compensation, including certain
2 benefits and procedures administered by the workers'
3 compensation commissioner, workers' compensation liability
4 insurance, liability insurance, confidential information filed
5 with the workers' compensation commission, liability of third
6 parties, subrogation and indemnification of employers, and
7 repeal of provisions specific to occupational disease
8 compensation, and providing penalties.
9 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
10 TLSB 5965HH 80
11 av/sh/8
PAG LIN
1 1 Section 1. Section 22.7, Code Supplement 2003, is amended
1 2 by adding the following new subsection:
1 3 NEW SUBSECTION. 48. Confidential information filed with
1 4 the workers' compensation commissioner as defined in section
1 5 86.45, subsection 1.
1 6 Sec. 2. Section 85.1, subsection 6, Code 2003, is amended
1 7 to read as follows:
1 8 6. Employers may with respect to an employee or a
1 9 classification of employees exempt from coverage provided by
1 10 this chapter pursuant to subsection 1, 2, or 3, 4, or 5, other
1 11 than the employee or classification of employees with respect
1 12 to whom a rule of liability or a method of compensation is
1 13 established by the Congress of the United States, assume a
1 14 liability for compensation imposed upon employers by this
1 15 chapter, for the benefit of employees within the coverage of
1 16 this chapter, by the purchase of valid workers' compensation
1 17 insurance that does not specifically including exclude the
1 18 employee or classification of employees. The purchase of and
1 19 acceptance by an employer of valid workers' compensation
1 20 insurance applicable to the employee or classification of
1 21 employees constitutes an assumption by the employer of
1 22 liability without any further act on the part of the employer,
1 23 but only with respect to the employee or classification of
1 24 employees as are within the coverage of the workers'
1 25 compensation insurance contract and only for the time period
1 26 in which the insurance contract is in force. Upon an election
1 27 of such coverage, the employee or classification of employees
1 28 shall accept compensation in the manner provided by this
1 29 chapter and the employer shall be relieved from any other
1 30 liability for recovery of damage, or other compensation for
1 31 injury.
1 32 Sec. 3. Section 85.22, Code 2003, is amended by striking
1 33 the section and inserting in lieu thereof the following:
1 34 NEW SECTION. 85.22 LIABILITY OF OTHERS == INDEMNITY AND
1 35 SUBROGATION.
2 1 1. As used in this section, unless the context otherwise
2 2 requires:
2 3 a. "Employee" includes the employee's trustee, guardian,
2 4 conservator, or other legal representative, or the employee's
2 5 dependent or trustee, guardian, conservator, or other legal
2 6 representative of the employee's dependent.
2 7 b. "Employer" includes an insurance carrier under chapter
2 8 87 and any other person that pays or is legally obligated to
2 9 pay workers' compensation benefits to an employee on behalf of
2 10 the employer.
2 11 c. "Recovery" means a payment of anything of value, from
2 12 or on behalf of a third party, to or as directed by an
2 13 employee, as damages to resolve the employee's cause of action
2 14 for personal injury or wrongful death against a third party
2 15 that resulted from an injury, an occupational disease, or an
2 16 occupational hearing loss for which compensation is payable
2 17 under this chapter or chapter 85B. "Recovery" does not
2 18 include a payment that is made in good faith to resolve a
2 19 claim for damages to an employee's personal property, a claim
2 20 made by a person other than the employee, or a claim for loss
2 21 of consortium.
2 22 2. When an employee receives an injury, dies, or incurs an
2 23 occupational disease or an occupational hearing loss for which
2 24 workers' compensation benefits are payable under this chapter
2 25 or chapter 85B, under circumstances that create a cause of
2 26 action for damages for personal injury or wrongful death
2 27 against a third party, other than the employee's employer or
2 28 any employee of such employer as provided in section 85.20,
2 29 the employer shall pay all workers' compensation benefits as
2 30 the benefits become due and the employee may also maintain a
2 31 cause of action against such third party for damages without
2 32 waiving any claim for workers' compensation benefits.
2 33 3. If an injured employee recovers damages from a third
2 34 party, the employer shall be indemnified out of the recovery
2 35 of damages to the extent of the workers' compensation benefits
3 1 paid, with interest, less the employer's pro rata share of
3 2 attorney fees owed as provided in this section. The employer
3 3 shall have a lien upon the cause of action and recovery of
3 4 damages to secure the employer's right of indemnification and
3 5 shall receive an offset against any workers' compensation
3 6 benefits that become payable after the recovery of damages
3 7 from the third party has been disbursed.
3 8 4. When an injured employee brings an action against a
3 9 third party, the employee shall give the employer written
3 10 notice that the employee has made such a claim, by serving a
3 11 copy of the original notice and petition upon the employer
3 12 within ten days after commencement of the action. A failure
3 13 to give such notice shall not prejudice the rights of the
3 14 employer or the parties to the pending action. The employer's
3 15 lien securing indemnification is perfected by filing written
3 16 notice of the lien in the office of the clerk of the court
3 17 where the action is brought. The lien is binding on any
3 18 person who has actual knowledge that the employee has received
3 19 workers' compensation benefits from the employer. The
3 20 employer shall provide an itemized statement showing the
3 21 amount of the lien upon request by the employee or the third
3 22 party against whom the action has been brought.
3 23 5. An employer may request, in writing, that an injured
3 24 employee commence a cause of action for damages against a
3 25 third party. If the employee fails to commence such an action
3 26 within ninety days after receipt of such a request, the
3 27 employer is subrogated to the rights of the employee to pursue
3 28 the action and may recover damages for the injury to the same
3 29 extent that the employee may recover damages. An employer who
3 30 exercises subrogation rights shall commence an action in the
3 31 name of the employee and shall give the employee written
3 32 notice by providing a copy of the original notice and petition
3 33 to the employee within ten days after commencement of the
3 34 action. An employer may commence a subrogation action without
3 35 first requesting that the employee commence the action, if the
4 1 action is commenced within thirty days before the applicable
4 2 statute of limitations would bar the action. The employee
4 3 shall reasonably cooperate with the employer's efforts to
4 4 pursue the cause of action.
4 5 6. In case of recovery of damages by the employee, the
4 6 court shall enter judgment for distribution of the proceeds
4 7 thereof as follows:
4 8 a. A sum sufficient to pay attorney fees to the employee's
4 9 attorney, including expenses of litigation. The proportion of
4 10 the total recovery that is payable for attorney fees shall be
4 11 computed to the nearest one=hundredth of a percent to
4 12 determine the pro rata shares of attorney fees that are owed
4 13 by the employee and the employer for that portion of the
4 14 recovery allocable to each.
4 15 b. A sum sufficient to indemnify the employer for all
4 16 workers' compensation benefits paid to the employee as of the
4 17 time of distribution of the proceeds together with interest
4 18 calculated from the date the benefits were paid, at the rate
4 19 provided in section 535.3 for court judgments and decrees,
4 20 less the employer's pro rata share of attorney fees as
4 21 determined pursuant to paragraph "a". The employer shall not
4 22 be indemnified for interest paid or payable to the employee on
4 23 workers' compensation benefits that were not paid when due
4 24 under section 85.30 or that were delayed or terminated without
4 25 reasonable or probable cause or excuse under section 86.13.
4 26 c. The balance of the net recovery, if any, shall be paid
4 27 to the employee, subject to the employer's future right of
4 28 offset.
4 29 d. Any dispute concerning attorney fees, litigation
4 30 expenses, or the amount of indemnification owed to the
4 31 employer shall be determined by the court having jurisdiction
4 32 of the third=party action.
4 33 7. a. If the employee's entitlement to workers'
4 34 compensation benefits is disputed at the time the proceeds of
4 35 the recovery are distributed, or if additional benefits become
5 1 due after such distribution, the employer's liability for
5 2 benefits shall be offset against the net recovery paid to the
5 3 employee under subsection 6, paragraph "c", before any
5 4 additional benefits are payable to the employee.
5 5 b. Satisfaction of the employer's liability to the
5 6 employee for benefits by an offset constitutes indemnification
5 7 of the employer to the extent of the offset, and the employer
5 8 shall pay to the employee the employer's pro rata share of
5 9 attorney fees allocable to that portion of the recovery that
5 10 is offset against the employer's liability together with
5 11 interest that would have been due on the employer's liability
5 12 if the liability had not been satisfied by the offset. An
5 13 employee shall be reimbursed for the pro rata share of
5 14 attorney fees allocable to the employer's offset within thirty
5 15 days after submitting proof to the employer that the employee
5 16 has paid charges for which the employer would be liable under
5 17 section 85.27 if there had not been a recovery from a third
5 18 party. Amounts paid by an employer to an employee as
5 19 reimbursement for pro rata attorney fees shall be included in
5 20 the employee's net recovery under subsection 6, paragraph "c",
5 21 and are subject to the employer's rights of offset.
5 22 8. A settlement between an employee or an employer and the
5 23 third party who is liable for the employee's injury is not
5 24 effective unless the employee gives written consent to a
5 25 settlement between the employer and such a third party, or
5 26 unless the employer gives written consent to a settlement
5 27 between the employee and such third party or if either the
5 28 employer or employee refuses consent, upon the written
5 29 approval of the workers' compensation commissioner. In
5 30 granting approval, the commissioner may also determine the
5 31 validity and amount of the employer's claim for
5 32 indemnification.
5 33 9. Notwithstanding the provisions of section 85.35, the
5 34 parties to a settlement approved pursuant to this section may,
5 35 by express written agreement, retain their respective rights
6 1 arising under this chapter and chapters 85B, 86, and 87.
6 2 Sec. 4. Section 85.27, subsections 4, 6, and 7, Code 2003,
6 3 are amended to read as follows:
6 4 4. For purposes of this section, the employer is obliged
6 5 to furnish reasonable services and supplies to treat an
6 6 injured employee, and has the right to choose the care. The
6 7 treatment must be offered promptly and be reasonably suited to
6 8 treat the injury without undue inconvenience to the employee.
6 9 The employer is liable for the reasonable cost of care chosen
6 10 by the employer to examine or treat the claimed injury. If
6 11 the employee has reason to be dissatisfied with the care
6 12 offered, the employee should communicate the basis of such
6 13 dissatisfaction to the employer, in writing if requested,
6 14 following which the employer and the employee may agree to
6 15 alternate care reasonably suited to treat the injury. If the
6 16 employer and employee cannot agree on such alternate care, the
6 17 commissioner may, upon application and reasonable proofs proof
6 18 of the necessity therefor, allow and order other care. In an
6 19 emergency, the employee may choose the employee's care at the
6 20 employer's expense, provided the employer or the employer's
6 21 agent cannot be reached immediately. An application made
6 22 under this subsection shall be considered an original
6 23 proceeding for purposes of commencement and contested case
6 24 proceedings under section 85.26. The hearing shall be
6 25 conducted pursuant to chapter 17A. Before a hearing is
6 26 scheduled, the parties may choose a telephone hearing or an
6 27 in=person hearing. A request for an in=person hearing shall
6 28 be approved unless the in=person hearing would be impractical
6 29 because of the distance between the parties to the hearing.
6 30 The workers' compensation commissioner shall issue a decision
6 31 within ten working days of receipt of an application for
6 32 alternate care made pursuant to a telephone hearing or within
6 33 fourteen working days of receipt of an application for
6 34 alternate care made pursuant to an in=person hearing. The
6 35 employer shall notify an injured employee of the employee's
7 1 ability to contest the employer's choice of care pursuant to
7 2 this subsection.
7 3 6. While a contested case proceeding for determination of
7 4 liability for workers' compensation benefits is pending before
7 5 the workers' compensation commissioner relating to an injury
7 6 alleged to have given rise to treatment, no debt collection,
7 7 as defined by section 537.7102, shall be undertaken against an
7 8 employee or the employee's dependents for the collection of
7 9 charges for that treatment rendered an employee by any health
7 10 service provider. However, the health service provider may
7 11 send one itemized written bill to the employee setting forth
7 12 the amount of the charges in connection with the treatment
7 13 after notification of the contested case proceeding. The
7 14 workers' compensation commissioner shall impose a civil
7 15 penalty upon any person who willfully and knowingly violates
7 16 this subsection, in an amount to be determined by the
7 17 commissioner, of not less than one hundred dollars and not
7 18 more than one thousand dollars for each violation, payable to
7 19 the employee or the employee's dependents against whom the
7 20 violation occurred.
7 21 7. If, after the third day of incapacity to work following
7 22 the date of sustaining a compensable injury which does not
7 23 result in permanent partial disability, or if, at any time
7 24 after sustaining a compensable injury which results in
7 25 permanent partial disability, an employee, who is not
7 26 receiving weekly benefits under section 85.33 or section
7 27 85.34, subsection 1, returns to work and is required to leave
7 28 work for one full day or less to receive services pursuant to
7 29 this section, the employee shall be paid an amount equivalent
7 30 to the wages lost at the employee's regular rate of pay for
7 31 the time the employee is required to leave work. For the
7 32 purposes of this subsection, "day of incapacity to work" means
7 33 eight hours of accumulated absence from work due to incapacity
7 34 to work or due to the receipt of services pursuant to this
7 35 subsection. The employer shall make the payments under this
8 1 subsection as wages to the employee after making such
8 2 deductions from the amount as legally required or customarily
8 3 made by the employer from wages. Payments made under this
8 4 subsection shall be required to be reimbursed pursuant to any
8 5 insurance policy covering workers' compensation. Payments
8 6 under this subsection shall not be construed to be payment of
8 7 weekly benefits.
8 8 Sec. 5. Section 85.33, subsection 4, Code 2003, is amended
8 9 to read as follows:
8 10 4. If an employee is entitled to temporary partial
8 11 benefits under subsection 3 of this section, the employer for
8 12 whom the employee was working at the time of injury shall pay
8 13 to the employee weekly compensation benefits, as provided in
8 14 section 85.32, for and during the period of temporary partial
8 15 disability. The temporary partial benefit shall be sixty=six
8 16 and two=thirds percent of the difference between the
8 17 employee's weekly earnings at the time of injury, computed in
8 18 compliance with section 85.36, and the employee's actual gross
8 19 weekly income from employment during the period of temporary
8 20 partial disability. If at the time of injury an employee is
8 21 paid on the basis of the output of the employee, with a
8 22 minimum guarantee pursuant to a written employment agreement,
8 23 the minimum guarantee shall be used as the employee's weekly
8 24 earnings at the time of injury. However, the weekly
8 25 compensation benefits shall not exceed the payments to which
8 26 the employee would be entitled under section 85.36 or section
8 27 85.37, or under subsection 1 of this section.
8 28 Sec. 6. Section 85.38, subsection 2, Code 2003, is amended
8 29 to read as follows:
8 30 2. CREDIT FOR BENEFITS PAID UNDER GROUP PLANS. In the
8 31 event the employee with a disability shall receive any
8 32 benefits, including medical, surgical, or hospital benefits,
8 33 under any group plan covering nonoccupational disabilities
8 34 contributed to wholly or partially by the employer, which
8 35 benefits should not have been paid or payable if any rights of
9 1 recovery existed under this chapter, chapter 85A, or chapter
9 2 85B, then the amounts so paid to the employee from the group
9 3 plan shall be credited to or against any compensation
9 4 payments, including medical, surgical, or hospital, made or to
9 5 be made under this chapter, chapter 85A, or chapter 85B. The
9 6 amounts so credited shall be deducted from the payments made
9 7 under these chapters. Any nonoccupational plan shall be
9 8 reimbursed in the amount deducted. This section shall not
9 9 apply to payments made under any group plan which would have
9 10 been payable even though there was an injury under this
9 11 chapter or an occupational disease under this chapter 85A or
9 12 an occupational hearing loss under chapter 85B. Any employer
9 13 receiving such credit shall keep the employee safe and
9 14 harmless from any and all claims or liabilities that may be
9 15 made against them by reason of having received the payments
9 16 only to the extent of the credit.
9 17 If an employer denies liability under this chapter, chapter
9 18 85A, or chapter 85B, for payment for any medical services
9 19 received or weekly compensation requested by an employee with
9 20 a disability, and the employee is a beneficiary under either
9 21 an individual or group plan for nonoccupational illness,
9 22 injury, or disability, the nonoccupational plan shall not deny
9 23 payment for the medical services received of benefits under
9 24 the plan on the basis that the employer's liability for the
9 25 medical services under this chapter, chapter 85A, or chapter
9 26 85B is unresolved.
9 27 Sec. 7. Section 85.55, Code 2003, is amended to read as
9 28 follows:
9 29 85.55 WAIVERS PROHIBITED == PHYSICAL DEFECTS.
9 30 No An employee or dependent to whom this chapter applies,
9 31 shall not have power to waive any of the provisions of this
9 32 chapter in regard to the amount of compensation which may be
9 33 payable to such employee or dependent hereunder. However, any
9 34 person who has some physical defect which increases the risk
9 35 of injury, may, subject to the approval of the workers'
10 1 compensation commissioner, enter into a written agreement with
10 2 the employee's employer waiving compensation for injuries
10 3 which may occur directly or indirectly because of such
10 4 physical defect, provided, however, that such waiver shall not
10 5 affect the employee's benefits to be paid from the second
10 6 injury fund under the provisions of section 85.64.
10 7 Sec. 8. Section 85.61, subsection 2, Code 2003, is amended
10 8 by adding the following new unnumbered paragraph:
10 9 NEW UNNUMBERED PARAGRAPH. "Employer" includes and applies
10 10 to a person who contracts with a contractor for purposes of
10 11 the person's trade or business and the person shall be subject
10 12 to the jurisdiction of the workers' compensation commissioner
10 13 and to all of the provisions of this chapter, chapters 85B,
10 14 86, and 87, as to any and all personal injuries sustained by
10 15 the employees of the contractor arising out of and in the
10 16 course of performance of the contract with the person, if the
10 17 contractor has failed to insure the contractor's workers'
10 18 compensation liability or to obtain relief from workers'
10 19 compensation liability as provided in chapter 87. A person
10 20 who pays benefits pursuant to this section is considered to be
10 21 the employer for purposes of the exclusive remedy provisions
10 22 of sections 85.3 and 85.20, and for purposes of the
10 23 subrogation and indemnity provisions of section 85.22. A
10 24 person who pays benefits to the employees of a contractor
10 25 pursuant to this section is entitled to be indemnified by the
10 26 contractor with interest. A person shall not be charged a
10 27 premium for workers' compensation insurance for coverage of a
10 28 contractor's employees if the person holds a current
10 29 certificate of insurance or self=insurance showing that the
10 30 contractor with whom the person has a contract is in
10 31 compliance with chapter 87.
10 32 Sec. 9. Section 85.61, subsection 4, paragraph b, Code
10 33 2003, is amended to read as follows:
10 34 b. They shall not include a disease unless it shall result
10 35 that results from the injury and they shall not include an
11 1 occupational disease as defined in section 85A.8.
11 2 Sec. 10. Section 85.70, Code 2003, is amended to read as
11 3 follows:
11 4 85.70 ADDITIONAL PAYMENT FOR ATTENDANCE.
11 5 An employee who has sustained an injury resulting in
11 6 permanent partial or permanent total disability, for which
11 7 compensation is payable under this chapter, and who cannot
11 8 return to gainful employment because of such disability, shall
11 9 upon application to and approval by the workers' compensation
11 10 commissioner be entitled to a twenty=dollar one hundred dollar
11 11 weekly payment from the employer in addition to any other
11 12 benefit payments, during each full week in which the employee
11 13 is actively participating in a vocational rehabilitation
11 14 program recognized by the vocational rehabilitation services
11 15 division of the department of education. The workers'
11 16 compensation commissioner's approval of such application for
11 17 payment may be given only after a careful evaluation of
11 18 available facts, and after consultation with the employer or
11 19 the employer's representative. Judicial review of the
11 20 decision of the workers' compensation commissioner may be
11 21 obtained in accordance with the terms of the Iowa
11 22 administrative procedure Act and in section 86.26. Such
11 23 additional benefit payment shall be paid for a period not to
11 24 exceed thirteen consecutive weeks except that the workers'
11 25 compensation commissioner may extend the period of payment not
11 26 to exceed an additional thirteen weeks if the circumstances
11 27 indicate that a continuation of training will in fact
11 28 accomplish rehabilitation. Payments made by an employer
11 29 pursuant to this section do not constitute payment of weekly
11 30 compensation benefits.
11 31 Sec. 11. Section 86.24, subsection 4, Code 2003, is
11 32 amended to read as follows:
11 33 4. A transcript of a contested case proceeding shall be
11 34 provided by an appealing party at the party's cost and an
11 35 affidavit shall be filed by the appealing party or the party's
12 1 attorney with the workers' compensation commissioner within
12 2 ten days after the filing of the appeal to the workers'
12 3 compensation commissioner stating that the transcript has been
12 4 ordered and identifying the name and address of the reporter
12 5 or reporting firm from which the transcript has been ordered.
12 6 Sec. 12. NEW SECTION. 86.45 CONFIDENTIAL INFORMATION.
12 7 1. "Confidential information", for the purposes of this
12 8 section, means all information that is filed with the workers'
12 9 compensation commissioner as a result of an employee's injury
12 10 or death that would allow the identification of the employee
12 11 or the employee's dependents. "Confidential information"
12 12 includes first reports of injury and subsequent reports of
12 13 claim activity. "Confidential information" does not include
12 14 pleadings, motions, decisions, opinions, or applications for
12 15 settlement that are filed with the workers' compensation
12 16 commissioner.
12 17 2. The workers' compensation commissioner shall not
12 18 disclose confidential information except as follows:
12 19 a. Pursuant to the terms of a written waiver of
12 20 confidentiality executed by the employee or the dependents of
12 21 the employee whose information is filed with the workers'
12 22 compensation commission.
12 23 b. To another governmental agency, or to an advisory,
12 24 rating, or research organization, for the purpose of compiling
12 25 statistical data, evaluating the state's workers' compensation
12 26 system, or conducting scientific, medical, or public policy
12 27 research, where such disclosure will not allow the
12 28 identification of the employee or the employee's dependents.
12 29 c. To the employee or to the agent or attorney of the
12 30 employee whose information is filed with the workers'
12 31 compensation commissioner.
12 32 d. To the person or to the agent of the person who
12 33 submitted the information to the workers' compensation
12 34 commissioner.
12 35 e. To an agent, representative, attorney, investigator,
13 1 consultant, or adjuster of an employer, or insurance carrier
13 2 or third=party administrator of workers' compensation
13 3 benefits, who is involved in administering a claim for such
13 4 benefits related to the injury or death of the employee whose
13 5 information is filed with the workers' compensation
13 6 commissioner.
13 7 f. To all parties to a contested case proceeding before
13 8 the workers' compensation commissioner in which the employee
13 9 or a dependent of the employee, whose information is filed
13 10 with the workers' compensation commissioner, is a party.
13 11 g. In compliance with a subpoena.
13 12 h. To an agent, representative, attorney, investigator,
13 13 consultant, or adjuster of the employee, employer, or
13 14 insurance carrier or third=party administrator of insurance
13 15 benefits, who is involved in administering a claim for
13 16 insurance benefits related to the injury or death of the
13 17 employee whose information is filed with the workers'
13 18 compensation commissioner.
13 19 3. This section does not create a cause of action for a
13 20 violation of its provisions against the workers' compensation
13 21 commissioner or against the state or any governmental
13 22 subdivision of the state.
13 23 Sec. 13. Section 87.8, Code 2003, is amended to read as
13 24 follows:
13 25 87.8 INSOLVENCY CLAUSE PROHIBITED.
13 26 No policy of insurance issued under this chapter shall
13 27 contain any provision relieving the insurer from payment if
13 28 the insured becomes insolvent or discharged in bankruptcy
13 29 during the period that the policy is in operation, or the
13 30 compensation, or any part of it, is unpaid. An insurer shall
13 31 pay, when due, all benefits and compensation for which the
13 32 insured is liable under this state's workers' compensation
13 33 laws, regardless of whether the insured has reimbursed the
13 34 insurer or paid any deductible due under the policy of
13 35 insurance.
14 1 Sec. 14. Section 96.7, subsection 2, paragraph a,
14 2 subparagraph (2), unnumbered paragraph 4, Code Supplement
14 3 2003, is amended to read as follows:
14 4 The amount of benefits paid to an individual, which is
14 5 solely due to wage credits considered to be in an individual's
14 6 base period due to the exclusion and substitution of calendar
14 7 quarters from the individual's base period under section
14 8 96.23, shall be charged against the account of the employer
14 9 responsible for paying the workers' compensation benefits for
14 10 temporary total disability or during a healing period under
14 11 section 85.33, or section 85.34, subsection 1, or section
14 12 85A.17, or responsible for paying indemnity insurance
14 13 benefits.
14 14 Sec. 15. Section 96.23, unnumbered paragraph 1, Code 2003,
14 15 is amended to read as follows:
14 16 The department shall exclude three or more calendar
14 17 quarters from an individual's base period, as defined in
14 18 section 96.19, subsection 3, if the individual received
14 19 workers' compensation benefits for temporary total disability
14 20 or during a healing period under section 85.33, or section
14 21 85.34, subsection 1, or section 85A.17 or indemnity insurance
14 22 benefits during those three or more calendar quarters, if one
14 23 of the following conditions applies to the individual's base
14 24 period:
14 25 Sec. 16. Section 331.324, subsection 1, paragraph d, Code
14 26 2003, is amended to read as follows:
14 27 d. Provide occupational disease compensation to employees
14 28 as required by chapter 85A 85.
14 29 Sec. 17. Section 8A.457, section 8A.512, subsection 1,
14 30 paragraph b, subparagraph (1), and section 84A.5, subsection
14 31 4, Code Supplement 2003, are amended by striking the figure
14 32 "85A,".
14 33 Sec. 18. Section 85.3, subsections 2 and 3, section 85.20,
14 34 unnumbered paragraph 1, section 85.21, subsections 1 and 3,
14 35 section 85.22, unnumbered paragraph 1, section 85.26,
15 1 subsections 1 through 3, section 85.27, subsections 1 and 3,
15 2 section 85.34, subsections 1, 3, 4, and 5, section 85.35,
15 3 section 85.38, subsection 4, section 85.49, unnumbered
15 4 paragraph 1, section 85.60, section 85.61, subsection 11,
15 5 section 86.8, subsection 1, section 86.9, unnumbered paragraph
15 6 1, sections 86.13, 86.17, 86.18, and 86.19, section 86.24,
15 7 subsection 1, sections 86.29, 86.39, 86.44, 87.1, and 87.2,
15 8 section 87.11, subsection 3, sections 87.13, 87.14A, 87.16,
15 9 87.21, and 87.22, section 515B.5, subsection 2, paragraph h,
15 10 section 622.10, subsection 3, paragraph f, section 627.13, and
15 11 section 729.6, subsection 7, paragraph a, Code 2003, are
15 12 amended by striking all references to chapter 85A, and the
15 13 Code editor shall correct any corresponding grammatical
15 14 constructions.
15 15 Sec. 19. CODE EDITOR DIRECTIVE. The Code editor shall
15 16 strike any references to chapter 85A anywhere else in the
15 17 Code, in any bills awaiting codification, and in any bills
15 18 enacted by the Eightieth General Assembly, 2004 Regular
15 19 Session, and shall make any related grammatical corrections.
15 20 Sec. 20. Chapter 85A, Code 2003, is repealed.
15 21 EXPLANATION
15 22 This bill contains various provisions relating to workers'
15 23 compensation.
15 24 The bill amends Code section 22.7 to provide that
15 25 confidential information filed with the workers' compensation
15 26 commissioner as defined in Code section 86.45, as enacted in
15 27 the bill, is a confidential public record for purposes of this
15 28 state's open records law.
15 29 The bill amends Code section 85.1 to provide that an
15 30 employer assumes liability for workers' compensation coverage
15 31 of certain persons exempt from workers' compensation
15 32 requirements by purchasing coverage that does not specifically
15 33 exclude them. The bill also amends Code section 85.1 to
15 34 provide that an employer cannot assume liability for workers'
15 35 compensation coverage of police officers and fire fighters who
16 1 are entitled to benefits under Code chapters 410 and 411, and
16 2 certain officers of a corporation other than a family farm
16 3 corporation who voluntarily reject workers' compensation
16 4 coverage. This provision of Code section 85.1 is also amended
16 5 to provide that an employer may assume liability for certain
16 6 other exempt employees by purchasing workers' compensation
16 7 insurance that does not specifically exclude them. Such
16 8 employees include certain domestic, casual, and agricultural
16 9 employees. Previously, any employees exempt under this
16 10 section were covered only if the workers' compensation
16 11 insurance policy specifically included them in the coverage.
16 12 Code section 85.22 is amended by striking the section and
16 13 replacing it with new language relating to the liability of
16 14 third persons for work=related injuries and to subrogation and
16 15 indemnification of employers and insurers. The employer's
16 16 lien securing indemnification for workers' compensation
16 17 benefits paid is perfected by filing written notice of the
16 18 lien in the office of the clerk of court where the action is
16 19 brought. The lien is binding on any person who has actual
16 20 knowledge that the employee has received workers' compensation
16 21 benefits from the employer.
16 22 The bill provides that if an employee recovers damages from
16 23 a third party, the employer shall be indemnified out of the
16 24 recovery of damages to the extent of the workers' compensation
16 25 benefits paid, with interest, less the employer's pro rata
16 26 share of attorney fees owed as provided in the bill.
16 27 The bill also provides that if the employee does not
16 28 commence an action against the third party, the employer shall
16 29 be subrogated to the rights of the employee by requesting, in
16 30 writing, that an injured employee commence a cause of action
16 31 for damages against a third party, and if the employee fails
16 32 to commence such an action within 90 days after receipt of the
16 33 request, the employer may pursue the action and recover
16 34 damages to the same extent that the employee might. An
16 35 employer is not required to first request that an employee
17 1 file suit against a third party if the employer commences the
17 2 action within 30 days before the applicable statute of
17 3 limitations would bar the suit.
17 4 The bill also provides that the court shall enter judgment
17 5 to distribute the proceeds of any recovery by disbursing a
17 6 sum, sufficient to pay attorney fees to the employee's
17 7 attorney including costs of litigation; a sum sufficient to
17 8 indemnify the employer for all workers' compensation benefits
17 9 paid to the employee at the time of disbursement together with
17 10 interest calculated from the date benefits were paid; and the
17 11 balance of the net recovery shall be paid to the employee,
17 12 subject to the employer's future right of offset if the
17 13 employee's entitlement to workers' compensation is disputed at
17 14 the time of disbursement or additional benefits later become
17 15 due.
17 16 The bill also provides that satisfaction of the employer's
17 17 liability to the employee for benefits by an offset
17 18 constitutes indemnification of the employer to the extent of
17 19 the offset. The bill provides that an employee shall be
17 20 reimbursed for the employer's share of attorney fees within 30
17 21 days after submitting proof to the employer that the employee
17 22 has paid charges for services, such as medical and hospital
17 23 services, for which the employer would be liable if there had
17 24 not been a recovery from a third party. Amounts paid by an
17 25 employer as reimbursement for attorney fees shall be included
17 26 in the employee's net recovery allowed and are subject to the
17 27 employer's rights of offset for future liabilities.
17 28 The bill also provides that a settlement between an
17 29 employee or an employer and a third party is not effective
17 30 unless either the employee or employer who is not involved in
17 31 the settlement gives written consent or upon written approval
17 32 of the workers' compensation commissioner.
17 33 The bill amends Code section 85.27, subsection 4, to
17 34 provide that the cost of services and supplies chosen by the
17 35 employer to treat an injured employee, such as surgical,
18 1 medical, dental, osteopathic, chiropractic, podiatric,
18 2 physical rehabilitation, nursing, ambulance, and hospital
18 3 services and supplies, shall be paid by the employer.
18 4 Code section 85.27, subsection 6, is amended to provide
18 5 that the workers' compensation commissioner shall impose a
18 6 civil penalty upon any person who willfully and knowingly
18 7 violates the subsection by undertaking debt collection against
18 8 an employee or an employee's dependents for treatment rendered
18 9 an employee by any health care provider relating to an injury
18 10 for which a claim for workers' compensation benefits is
18 11 pending. In that situation the commissioner is required to
18 12 impose a penalty of not less than $100 and not more than
18 13 $1,000 for each violation, payable to the employee or the
18 14 employee's dependents against whom the violation occurred.
18 15 Code section 85.27, subsection 7, is amended to provide
18 16 that for purposes of the section, "day of incapacity to work"
18 17 means eight hours of accumulated absence from work due to
18 18 incapacity to work or due to the receipt of services pursuant
18 19 to that section.
18 20 Code section 85.33, subsection 4, is amended to remove a
18 21 provision applicable to employees who work on the basis of
18 22 output or piecework which provides that such an injured
18 23 employee's minimum guarantee of pay instead of actual earnings
18 24 would be used to calculate the employee's weekly compensation
18 25 rate for temporary partial workers' compensation benefits.
18 26 The bill amends Code section 85.38 to provide that if an
18 27 employer denies liability under Code chapter 85 or 85B for
18 28 payment of weekly compensation requested by an employee and
18 29 the employee is a beneficiary under either an individual or
18 30 group plan for nonoccupational illness, injury, or disability,
18 31 the nonoccupational plan shall not deny payment of benefits
18 32 under the plan on the basis that the employer's liability
18 33 under Code chapter 85 or 85B is unresolved. Code section
18 34 85.38 currently requires payment by a nonoccupational plan for
18 35 any medical services received by an injured employee under
19 1 these circumstances.
19 2 Code section 85.55 is amended to remove language that
19 3 allowed an employee with a preexisting physical defect that
19 4 increased the employee's risk of injury to enter into a
19 5 written agreement with an employer waiving workers'
19 6 compensation benefits for injuries that might occur at work
19 7 resulting either directly or indirectly from the employee's
19 8 physical defect.
19 9 The bill amends Code section 85.61, subsection 2, to
19 10 provide that an "employer", for purposes of Code chapters 85,
19 11 85B, 86, and 87, includes and applies to a person who
19 12 contracts with a contractor for purposes of the person's trade
19 13 or business as to personal injuries sustained by the employees
19 14 of the contractor arising out of and in the course of
19 15 performance of the contract with the person, if the contractor
19 16 has failed to insure the contractor's workers' compensation
19 17 liability or to obtain relief from workers' compensation
19 18 liability as provided in Code chapter 87. The provision also
19 19 states that a person who pays benefits pursuant to this
19 20 section is considered to be the employer for purposes of the
19 21 exclusive remedy provisions and for purposes of subrogation
19 22 and indemnity provisions. A person who pays benefits to the
19 23 employees of a contractor is entitled to be indemnified by the
19 24 contractor with interest and shall not be charged a premium
19 25 for workers' compensation insurance coverage for a
19 26 contractor's employees if the person holds a current
19 27 certificate of insurance or self=insurance showing that the
19 28 contractor is in compliance with Code chapter 87.
19 29 The bill amends Code section 85.61 to provide that an
19 30 "injury" or "personal injury" for purposes of this state's
19 31 workers' compensation laws includes a disease that results
19 32 from an injury and includes an occupational disease.
19 33 The bill amends Code section 85.70 to provide that an
19 34 injured employee with a permanent disability who actively
19 35 participates in a vocational rehabilitation program shall be
20 1 paid $100 instead of $20 each week by the employer during each
20 2 week of participation in addition to any other benefit
20 3 payments and that such payments do not constitute weekly
20 4 compensation benefits.
20 5 The bill amends Code section 86.24 to remove the
20 6 requirement that a party appealing a contested case proceeding
20 7 must file an affidavit with the commissioner that the
20 8 transcript of the proceedings has been ordered.
20 9 The bill adds new Code section 86.45 that defines
20 10 "confidential information" to mean all information that is
20 11 filed with the workers' compensation commissioner as a result
20 12 of an employee's injury or death that would allow
20 13 identification of the employee or the employee's dependents.
20 14 "Confidential information" includes first reports of injury
20 15 and subsequent reports of claim activity but does not include
20 16 pleadings, motions, decisions, opinions, or applications for
20 17 settlement that are filed with the workers' compensation
20 18 commissioner.
20 19 The bill provides that the workers' compensation
20 20 commissioner shall not disclose such confidential information
20 21 except pursuant to the terms of a written waiver of
20 22 confidentiality executed by the employee or the dependents of
20 23 the employee whose information is filed with the workers'
20 24 compensation commissioner; to another governmental agency or
20 25 to an advisory, rating, or research organization for the
20 26 purpose of compiling statistical data, or conducting
20 27 scientific, medical, or public policy research, where such
20 28 disclosure will not allow identification of the employee or
20 29 the employee's dependents; to the employee or to the agent or
20 30 attorney of the employee whose information is filed with the
20 31 workers' compensation commissioner; to the person or agent of
20 32 the person who submitted the information to the workers'
20 33 compensation commissioner; to an agent, representative,
20 34 attorney, investigator, consultant, or adjuster of an
20 35 employer, or insurance carrier or third=party administrator of
21 1 workers' compensation benefits, who is involved in
21 2 administering a claim for such benefits related to the injury
21 3 or death of the employee whose information is filed with the
21 4 workers' compensation commissioner; to all parties to a
21 5 contested case proceeding before the workers' compensation
21 6 commissioner in which the employee or a dependent of the
21 7 employee, whose information is filed with the workers'
21 8 compensation commissioner, is a party; in compliance with a
21 9 subpoena; or to an agent, representative, attorney,
21 10 investigator, consultant, or adjuster of the employee,
21 11 employer, or insurance carrier or third=party administrator of
21 12 insurance benefits, who is involved in administering a claim
21 13 for insurance benefits related to the injury or death of the
21 14 employee whose information is filed with the workers'
21 15 compensation commissioner.
21 16 The bill also provides that new Code section 86.45 does not
21 17 create a cause of action for a violation of its provisions
21 18 against the workers' compensation commissioner or against the
21 19 state or any governmental subdivision of the state.
21 20 Code section 87.8 is amended by the bill to provide that an
21 21 insurer must pay, when due, all benefits and compensation for
21 22 which the insured is liable under this state's workers'
21 23 compensation laws, regardless of whether the insured has
21 24 reimbursed the insurer or paid any deductible due under the
21 25 insurance policy.
21 26 The bill also repeals Code chapter 85A that dealt
21 27 separately with the payment of workers' compensation for
21 28 occupational disease. Currently, under Code chapter 85A, an
21 29 employee cannot receive workers' compensation benefits for an
21 30 occupational disease, unless disablement or death from the
21 31 disease results within three years, in the case of the disease
21 32 of pneumoconiosis, or within one year in the case of any other
21 33 occupational disease, after the employee's last injurious
21 34 exposure to the disease in the employment. By amending Code
21 35 chapter 85 to provide that an injury for purposes of that
22 1 chapter includes an occupational disease, an employee can
22 2 receive compensation for an occupational disease if the
22 3 employee commences a proceeding within two years from the date
22 4 of the injury. "Date of injury", for purposes of Code chapter
22 5 85, has been interpreted by the Iowa Supreme Court to be "the
22 6 date on which the claimant, as a reasonable person, would be
22 7 plainly aware of the injury and the causal relationship
22 8 between the injury and the claimant's employment". Weishaar
22 9 v. Snap=On Tools Corp., 582 N.W.2d 177, 181 (Iowa 1998). This
22 10 so=called "discovery rule" allows an employee to receive
22 11 compensation for an injury or disease that does not become
22 12 apparent for some time and does not require claims to be made
22 13 within a specific period of time after the last injurious
22 14 exposure or end of employment.
22 15 The bill also contains numerous coordinating amendments
22 16 that remove references to Code chapter 85A, which is repealed
22 17 by the bill.
22 18 LSB 5965HH 80
22 19 av/sh/8