Senate File 244 - Introduced
SENATE FILE
BY COURTNEY
Passed Senate, Date Passed House, 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 2234SS 81
11 av/sh/8
PAG LIN
1 1 Section 1. Section 22.7, Code 2005, is amended by adding
1 2 the following new subsection:
1 3 NEW SUBSECTION. 51. 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 2005, 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 2005, is amended by striking
1 33 the section and inserting in lieu thereof the following:
1 34 85.22 LIABILITY OF OTHERS == INDEMNITY AND SUBROGATION.
1 35 1. As used in this section, unless the context otherwise
2 1 requires:
2 2 a. "Employee" includes the employee's trustee, guardian,
2 3 conservator, or other legal representative, or the employee's
2 4 dependent or trustee, guardian, conservator, or other legal
2 5 representative of the employee's dependent.
2 6 b. "Employer" includes an insurance carrier under chapter
2 7 87 and any other person that pays or is legally obligated to
2 8 pay workers' compensation benefits to an employee on behalf of
2 9 the employer.
2 10 c. "Recovery" means a payment of anything of value, from
2 11 or on behalf of a third party, to or as directed by an
2 12 employee, as damages to resolve the employee's cause of action
2 13 for personal injury or wrongful death against a third party
2 14 that resulted from an injury, an occupational disease, or an
2 15 occupational hearing loss for which compensation is payable
2 16 under this chapter or chapter 85B. "Recovery" does not
2 17 include a payment that is made in good faith to resolve a
2 18 claim for damages to an employee's personal property, a claim
2 19 made by a person other than the employee, or a claim for loss
2 20 of consortium.
2 21 2. When an employee receives an injury, dies, or incurs an
2 22 occupational disease or an occupational hearing loss for which
2 23 workers' compensation benefits are payable under this chapter
2 24 or chapter 85B, under circumstances that create a cause of
2 25 action for damages for personal injury or wrongful death
2 26 against a third party, other than the employee's employer or
2 27 any employee of such employer as provided in section 85.20,
2 28 the employer shall pay all workers' compensation benefits as
2 29 the benefits become due and the employee may also maintain a
2 30 cause of action against such third party for damages without
2 31 waiving any claim for workers' compensation benefits.
2 32 3. If an injured employee recovers damages from a third
2 33 party, the employer shall be indemnified out of the recovery
2 34 of damages to the extent of the workers' compensation benefits
2 35 paid, with interest, less the employer's pro rata share of
3 1 attorney fees owed as provided in this section. The employer
3 2 shall have a lien upon the cause of action and recovery of
3 3 damages to secure the employer's right of indemnification and
3 4 shall receive an offset against any workers' compensation
3 5 benefits that become payable after the recovery of damages
3 6 from the third party has been disbursed.
3 7 4. When an injured employee brings an action against a
3 8 third party, the employee shall give the employer written
3 9 notice that the employee has made such a claim, by serving a
3 10 copy of the original notice and petition upon the employer
3 11 within ten days after commencement of the action. A failure
3 12 to give such notice shall not prejudice the rights of the
3 13 employer or the parties to the pending action. The employer's
3 14 lien securing indemnification is perfected by filing written
3 15 notice of the lien in the office of the clerk of the court
3 16 where the action is brought. The lien is binding on any
3 17 person who has actual knowledge that the employee has received
3 18 workers' compensation benefits from the employer. The
3 19 employer shall provide an itemized statement showing the
3 20 amount of the lien upon request by the employee or the third
3 21 party against whom the action has been brought.
3 22 5. An employer may request, in writing, that an injured
3 23 employee commence a cause of action for damages against a
3 24 third party. If the employee fails to commence such an action
3 25 within ninety days after receipt of such a request, the
3 26 employer is subrogated to the rights of the employee to pursue
3 27 the action and may recover damages for the injury to the same
3 28 extent that the employee may recover damages. An employer who
3 29 exercises subrogation rights shall commence an action in the
3 30 name of the employee and shall give the employee written
3 31 notice by providing a copy of the original notice and petition
3 32 to the employee within ten days after commencement of the
3 33 action. An employer may commence a subrogation action without
3 34 first requesting that the employee commence the action, if the
3 35 action is commenced within thirty days before the applicable
4 1 statute of limitations would bar the action. The employee
4 2 shall reasonably cooperate with the employer's efforts to
4 3 pursue the cause of action.
4 4 6. In case of recovery of damages by the employee, the
4 5 court shall enter judgment for distribution of the proceeds
4 6 thereof as follows:
4 7 a. A sum sufficient to pay attorney fees to the employee's
4 8 attorney, including expenses of litigation. The proportion of
4 9 the total recovery that is payable for attorney fees shall be
4 10 computed to the nearest one=hundredth of a percent to
4 11 determine the pro rata shares of attorney fees that are owed
4 12 by the employee and the employer for that portion of the
4 13 recovery allocable to each.
4 14 b. A sum sufficient to indemnify the employer for all
4 15 workers' compensation benefits paid to the employee as of the
4 16 time of distribution of the proceeds together with interest
4 17 calculated from the date the benefits were paid, at the rate
4 18 provided in section 535.3 for court judgments and decrees,
4 19 less the employer's pro rata share of attorney fees as
4 20 determined pursuant to paragraph "a". The employer shall not
4 21 be indemnified for interest paid or payable to the employee on
4 22 workers' compensation benefits that were not paid when due
4 23 under section 85.30 or that were delayed or terminated without
4 24 reasonable or probable cause or excuse under section 86.13.
4 25 c. The balance of the net recovery, if any, shall be paid
4 26 to the employee, subject to the employer's future right of
4 27 offset.
4 28 d. Any dispute concerning attorney fees, litigation
4 29 expenses, or the amount of indemnification owed to the
4 30 employer shall be determined by the court having jurisdiction
4 31 of the third=party action.
4 32 7. a. If the employee's entitlement to workers'
4 33 compensation benefits is disputed at the time the proceeds of
4 34 the recovery are distributed, or if additional benefits become
4 35 due after such distribution, the employer's liability for
5 1 benefits shall be offset against the net recovery paid to the
5 2 employee under subsection 6, paragraph "c", before any
5 3 additional benefits are payable to the employee.
5 4 b. Satisfaction of the employer's liability to the
5 5 employee for benefits by an offset constitutes indemnification
5 6 of the employer to the extent of the offset, and the employer
5 7 shall pay to the employee the employer's pro rata share of
5 8 attorney fees allocable to that portion of the recovery that
5 9 is offset against the employer's liability together with
5 10 interest that would have been due on the employer's liability
5 11 if the liability had not been satisfied by the offset. An
5 12 employee shall be reimbursed for the pro rata share of
5 13 attorney fees allocable to the employer's offset within thirty
5 14 days after submitting proof to the employer that the employee
5 15 has paid charges for which the employer would be liable under
5 16 section 85.27 if there had not been a recovery from a third
5 17 party. Amounts paid by an employer to an employee as
5 18 reimbursement for pro rata attorney fees shall be included in
5 19 the employee's net recovery under subsection 6, paragraph "c",
5 20 and are subject to the employer's rights of offset.
5 21 8. A settlement between an employee or an employer and the
5 22 third party who is liable for the employee's injury is not
5 23 effective unless the employee gives written consent to a
5 24 settlement between the employer and such a third party, or
5 25 unless the employer gives written consent to a settlement
5 26 between the employee and such third party or if either the
5 27 employer or employee refuses consent, upon the written
5 28 approval of the workers' compensation commissioner. In
5 29 granting approval, the commissioner may also determine the
5 30 validity and amount of the employer's claim for
5 31 indemnification.
5 32 9. Notwithstanding the provisions of section 85.35, the
5 33 parties to a settlement approved pursuant to this section may,
5 34 by express written agreement, retain their respective rights
5 35 arising under this chapter and chapters 85B, 86, and 87.
6 1 Sec. 4. Section 85.27, subsections 6 and 7, Code 2005, are
6 2 amended to read as follows:
6 3 6. While a contested case proceeding for determination of
6 4 liability for workers' compensation benefits is pending before
6 5 the workers' compensation commissioner relating to an injury
6 6 alleged to have given rise to treatment, no debt collection,
6 7 as defined by section 537.7102, shall be undertaken against an
6 8 employee or the employee's dependents for the collection of
6 9 charges for that treatment rendered an employee by any health
6 10 service provider. However, the health service provider may
6 11 send one itemized written bill to the employee setting forth
6 12 the amount of the charges in connection with the treatment
6 13 after notification of the contested case proceeding. The
6 14 workers' compensation commissioner shall impose a civil
6 15 penalty upon any person who willfully and knowingly violates
6 16 this subsection, in an amount to be determined by the
6 17 commissioner, of not less than one hundred dollars and not
6 18 more than one thousand dollars for each violation, payable to
6 19 the employee or the employee's dependents against whom the
6 20 violation occurred.
6 21 7. If, after the third day of incapacity to work following
6 22 the date of sustaining a compensable injury which does not
6 23 result in permanent partial disability, or if, at any time
6 24 after sustaining a compensable injury which results in
6 25 permanent partial disability, an employee, who is not
6 26 receiving weekly benefits under section 85.33 or section
6 27 85.34, subsection 1, returns to work and is required to leave
6 28 work for one full day or less to receive services pursuant to
6 29 this section, the employee shall be paid an amount equivalent
6 30 to the wages lost at the employee's regular rate of pay for
6 31 the time the employee is required to leave work. For the
6 32 purposes of this subsection, "day of incapacity to work" means
6 33 eight hours of accumulated absence from work due to incapacity
6 34 to work or due to the receipt of services pursuant to this
6 35 subsection. The employer shall make the payments under this
7 1 subsection as wages to the employee after making such
7 2 deductions from the amount as legally required or customarily
7 3 made by the employer from wages. Payments made under this
7 4 subsection shall be required to be reimbursed pursuant to any
7 5 insurance policy covering workers' compensation. Payments
7 6 under this subsection shall not be construed to be payment of
7 7 weekly benefits.
7 8 Sec. 5. Section 85.33, subsection 4, Code 2005, is amended
7 9 to read as follows:
7 10 4. If an employee is entitled to temporary partial
7 11 benefits under subsection 3 of this section, the employer for
7 12 whom the employee was working at the time of injury shall pay
7 13 to the employee weekly compensation benefits, as provided in
7 14 section 85.32, for and during the period of temporary partial
7 15 disability. The temporary partial benefit shall be sixty=six
7 16 and two=thirds percent of the difference between the
7 17 employee's weekly earnings at the time of injury, computed in
7 18 compliance with section 85.36, and the employee's actual gross
7 19 weekly income from employment during the period of temporary
7 20 partial disability. If at the time of injury an employee is
7 21 paid on the basis of the output of the employee, with a
7 22 minimum guarantee pursuant to a written employment agreement,
7 23 the minimum guarantee shall be used as the employee's weekly
7 24 earnings at the time of injury. However, the weekly
7 25 compensation benefits shall not exceed the payments to which
7 26 the employee would be entitled under section 85.36 or section
7 27 85.37, or under subsection 1 of this section.
7 28 Sec. 6. Section 85.38, subsection 2, Code 2005, is amended
7 29 to read as follows:
7 30 2. CREDIT FOR BENEFITS PAID UNDER GROUP PLANS. In the
7 31 event the employee with a disability shall receive any
7 32 benefits, including medical, surgical, or hospital benefits,
7 33 under any group plan covering nonoccupational disabilities
7 34 contributed to wholly or partially by the employer, which
7 35 benefits should not have been paid or payable if any rights of
8 1 recovery existed under this chapter, chapter 85A, or chapter
8 2 85B, then the amounts so paid to the employee from the group
8 3 plan shall be credited to or against any compensation
8 4 payments, including medical, surgical, or hospital, made or to
8 5 be made under this chapter, chapter 85A, or chapter 85B. The
8 6 amounts so credited shall be deducted from the payments made
8 7 under these chapters. Any nonoccupational plan shall be
8 8 reimbursed in the amount deducted. This section shall not
8 9 apply to payments made under any group plan which would have
8 10 been payable even though there was an injury under this
8 11 chapter or an occupational disease under this chapter 85A or
8 12 an occupational hearing loss under chapter 85B. Any employer
8 13 receiving such credit shall keep the employee safe and
8 14 harmless from any and all claims or liabilities that may be
8 15 made against them by reason of having received the payments
8 16 only to the extent of the credit.
8 17 If an employer denies liability under this chapter, chapter
8 18 85A, or chapter 85B, for payment for any medical services
8 19 received or weekly compensation requested by an employee with
8 20 a disability, and the employee is a beneficiary under either
8 21 an individual or group plan for nonoccupational illness,
8 22 injury, or disability, the nonoccupational plan shall not deny
8 23 payment for the medical services received of benefits under
8 24 the plan on the basis that the employer's liability for the
8 25 medical services under this chapter, chapter 85A, or chapter
8 26 85B is unresolved.
8 27 Sec. 7. Section 85.61, subsection 2, Code 2005, is amended
8 28 by adding the following new unnumbered paragraph:
8 29 NEW UNNUMBERED PARAGRAPH. "Employer" includes and applies
8 30 to a person who contracts with a contractor for purposes of
8 31 the person's trade or business and the person shall be subject
8 32 to the jurisdiction of the workers' compensation commissioner
8 33 and to all of the provisions of this chapter, chapters 85B,
8 34 86, and 87, as to any and all personal injuries sustained by
8 35 the employees of the contractor arising out of and in the
9 1 course of performance of the contract with the person, if the
9 2 contractor has failed to insure the contractor's workers'
9 3 compensation liability or to obtain relief from workers'
9 4 compensation liability as provided in chapter 87. A person
9 5 who pays benefits pursuant to this section is considered to be
9 6 the employer for purposes of the exclusive remedy provisions
9 7 of sections 85.3 and 85.20, and for purposes of the
9 8 subrogation and indemnity provisions of section 85.22. A
9 9 person who pays benefits to the employees of a contractor
9 10 pursuant to this section is entitled to be indemnified by the
9 11 contractor with interest. A person shall not be charged a
9 12 premium for workers' compensation insurance for coverage of a
9 13 contractor's employees if the person holds a current
9 14 certificate of insurance or self=insurance showing that the
9 15 contractor with whom the person has a contract is in
9 16 compliance with chapter 87.
9 17 Sec. 8. Section 85.61, subsection 4, paragraph b, Code
9 18 2005, is amended to read as follows:
9 19 b. They shall not include a disease unless it shall result
9 20 that results from the injury and they shall not include an
9 21 occupational disease as defined in section 85A.8.
9 22 Sec. 9. Section 86.24, subsection 4, Code 2005, is amended
9 23 to read as follows:
9 24 4. A transcript of a contested case proceeding shall be
9 25 provided by an appealing party at the party's cost and an
9 26 affidavit shall be filed by the appealing party or the party's
9 27 attorney with the workers' compensation commissioner within
9 28 ten days after the filing of the appeal to the workers'
9 29 compensation commissioner stating that the transcript has been
9 30 ordered and identifying the name and address of the reporter
9 31 or reporting firm from which the transcript has been ordered.
9 32 Sec. 10. NEW SECTION. 86.45 CONFIDENTIAL INFORMATION.
9 33 1. "Confidential information", for the purposes of this
9 34 section, means all information that is filed with the workers'
9 35 compensation commissioner as a result of an employee's injury
10 1 or death that would allow the identification of the employee
10 2 or the employee's dependents. "Confidential information"
10 3 includes first reports of injury and subsequent reports of
10 4 claim activity. "Confidential information" does not include
10 5 pleadings, motions, decisions, opinions, or applications for
10 6 settlement that are filed with the workers' compensation
10 7 commissioner.
10 8 2. The workers' compensation commissioner shall not
10 9 disclose confidential information except as follows:
10 10 a. Pursuant to the terms of a written waiver of
10 11 confidentiality executed by the employee or the dependents of
10 12 the employee whose information is filed with the workers'
10 13 compensation commission.
10 14 b. To another governmental agency, or to an advisory,
10 15 rating, or research organization, for the purpose of compiling
10 16 statistical data, evaluating the state's workers' compensation
10 17 system, or conducting scientific, medical, or public policy
10 18 research, where such disclosure will not allow the
10 19 identification of the employee or the employee's dependents.
10 20 c. To the employee or to the agent or attorney of the
10 21 employee whose information is filed with the workers'
10 22 compensation commissioner.
10 23 d. To the person or to the agent of the person who
10 24 submitted the information to the workers' compensation
10 25 commissioner.
10 26 e. To an agent, representative, attorney, investigator,
10 27 consultant, or adjuster of an employer, or insurance carrier
10 28 or third=party administrator of workers' compensation
10 29 benefits, who is involved in administering a claim for such
10 30 benefits related to the injury or death of the employee whose
10 31 information is filed with the workers' compensation
10 32 commissioner.
10 33 f. To all parties to a contested case proceeding before
10 34 the workers' compensation commissioner in which the employee
10 35 or a dependent of the employee, whose information is filed
11 1 with the workers' compensation commissioner, is a party.
11 2 g. In compliance with a subpoena.
11 3 h. To an agent, representative, attorney, investigator,
11 4 consultant, or adjuster of the employee, employer, or
11 5 insurance carrier or third=party administrator of insurance
11 6 benefits, who is involved in administering a claim for
11 7 insurance benefits related to the injury or death of the
11 8 employee whose information is filed with the workers'
11 9 compensation commissioner.
11 10 3. This section does not create a cause of action for a
11 11 violation of its provisions against the workers' compensation
11 12 commissioner or against the state or any governmental
11 13 subdivision of the state.
11 14 Sec. 11. Section 87.8, Code 2005, is amended to read as
11 15 follows:
11 16 87.8 INSOLVENCY CLAUSE PROHIBITED.
11 17 No policy of insurance issued under this chapter shall
11 18 contain any provision relieving the insurer from payment if
11 19 the insured becomes insolvent or discharged in bankruptcy
11 20 during the period that the policy is in operation, or the
11 21 compensation, or any part of it, is unpaid. An insurer shall
11 22 pay, when due, all benefits and compensation for which the
11 23 insured is liable under this state's workers' compensation
11 24 laws, regardless of whether the insured has reimbursed the
11 25 insurer or paid any deductible due under the policy of
11 26 insurance.
11 27 Sec. 12. Section 96.7, subsection 2, paragraph a,
11 28 subparagraph (2), unnumbered paragraph 4, Code 2005, is
11 29 amended to read as follows:
11 30 The amount of benefits paid to an individual, which is
11 31 solely due to wage credits considered to be in an individual's
11 32 base period due to the exclusion and substitution of calendar
11 33 quarters from the individual's base period under section
11 34 96.23, shall be charged against the account of the employer
11 35 responsible for paying the workers' compensation benefits for
12 1 temporary total disability or during a healing period under
12 2 section 85.33, or section 85.34, subsection 1, or section
12 3 85A.17, or responsible for paying indemnity insurance
12 4 benefits.
12 5 Sec. 13. Section 96.23, unnumbered paragraph 1, Code 2005,
12 6 is amended to read as follows:
12 7 The department shall exclude three or more calendar
12 8 quarters from an individual's base period, as defined in
12 9 section 96.19, subsection 3, if the individual received
12 10 workers' compensation benefits for temporary total disability
12 11 or during a healing period under section 85.33, or section
12 12 85.34, subsection 1, or section 85A.17 or indemnity insurance
12 13 benefits during those three or more calendar quarters, if one
12 14 of the following conditions applies to the individual's base
12 15 period:
12 16 Sec. 14. Section 331.324, subsection 1, paragraph d, Code
12 17 2005, is amended to read as follows:
12 18 d. Provide occupational disease compensation to employees
12 19 as required by chapter 85A 85.
12 20 Sec. 15. Section 8A.457, section 8A.512, subsection 1,
12 21 paragraph b, subparagraph (1), and section 84A.5, subsection
12 22 4, Code 2005, are amended by striking the figure "85A,".
12 23 Sec. 16. Section 85.3, subsections 2 and 3; section 85.20,
12 24 unnumbered paragraph 1; section 85.21, subsections 1 and 3;
12 25 section 85.22, unnumbered paragraph 1; section 85.26,
12 26 subsections 1 through 3; section 85.27, subsections 1 and 3;
12 27 section 85.34, subsections 3, 4, and 5; section 85.35; section
12 28 85.38, subsection 4; section 85.49, unnumbered paragraph 1;
12 29 section 85.60; section 85.61, subsection 11; section 86.8,
12 30 subsection 1; section 86.9, unnumbered paragraph 1; sections
12 31 86.13, 86.17, 86.18, and 86.19; section 86.24, subsection 1;
12 32 sections 86.29, 86.39, 86.44, 87.1, and 87.2; section 87.11,
12 33 subsection 3; sections 87.13, 87.14A, 87.16, 87.21, and 87.22;
12 34 section 515B.5, subsection 2, paragraph h; section 622.10,
12 35 subsection 3, paragraph f; section 627.13; and section 729.6,
13 1 subsection 7, paragraph a, Code 2005, are amended by striking
13 2 all references to chapter 85A, and the Code editor shall
13 3 correct any corresponding grammatical constructions.
13 4 Sec. 17. CODE EDITOR DIRECTIVE. The Code editor shall
13 5 strike any references to chapter 85A anywhere else in the
13 6 Code, in any bills awaiting codification, and in any bills
13 7 enacted by the Eighty=first General Assembly, 2005 Regular
13 8 Session, and shall make any related grammatical corrections.
13 9 Sec. 18. Chapter 85A, Code 2005, is repealed.
13 10 EXPLANATION
13 11 This bill contains various provisions relating to workers'
13 12 compensation.
13 13 The bill amends Code section 22.7 to provide that
13 14 confidential information filed with the workers' compensation
13 15 commissioner as defined in Code section 86.45, as enacted in
13 16 the bill, is a confidential public record for purposes of this
13 17 state's open records law.
13 18 The bill amends Code section 85.1 to provide that an
13 19 employer assumes liability for workers' compensation coverage
13 20 of certain persons exempt from workers' compensation
13 21 requirements by purchasing coverage that does not specifically
13 22 exclude them. The bill also amends Code section 85.1 to
13 23 provide that an employer cannot assume liability for workers'
13 24 compensation coverage of police officers and fire fighters who
13 25 are entitled to benefits under Code chapters 410 and 411, and
13 26 certain officers of a corporation other than a family farm
13 27 corporation who voluntarily reject workers' compensation
13 28 coverage. This provision of Code section 85.1 is also amended
13 29 to provide that an employer may assume liability for certain
13 30 other exempt employees by purchasing workers' compensation
13 31 insurance that does not specifically exclude them. Such
13 32 employees include certain domestic, casual, and agricultural
13 33 employees. Previously, any employees exempt under this
13 34 section were covered only if the workers' compensation
13 35 insurance policy specifically included them in the coverage.
14 1 Code section 85.22 is amended by striking the section and
14 2 replacing it with new language relating to the liability of
14 3 third persons for work=related injuries and to subrogation and
14 4 indemnification of employers and insurers. The employer's
14 5 lien securing indemnification for workers' compensation
14 6 benefits paid is perfected by filing written notice of the
14 7 lien in the office of the clerk of court where the action is
14 8 brought. The lien is binding on any person who has actual
14 9 knowledge that the employee has received workers' compensation
14 10 benefits from the employer.
14 11 The bill provides that if an employee recovers damages from
14 12 a third party, the employer shall be indemnified out of the
14 13 recovery of damages to the extent of the workers' compensation
14 14 benefits paid, with interest, less the employer's pro rata
14 15 share of attorney fees owed as provided in the bill.
14 16 The bill also provides that if the employee does not
14 17 commence an action against the third party, the employer shall
14 18 be subrogated to the rights of the employee by requesting, in
14 19 writing, that an injured employee commence a cause of action
14 20 for damages against a third party, and if the employee fails
14 21 to commence such an action within 90 days after receipt of the
14 22 request, the employer may pursue the action and recover
14 23 damages to the same extent that the employee might. An
14 24 employer is not required to first request that an employee
14 25 file suit against a third party if the employer commences the
14 26 action within 30 days before the applicable statute of
14 27 limitations would bar the suit.
14 28 The bill also provides that the court shall enter judgment
14 29 to distribute the proceeds of any recovery by disbursing a
14 30 sum, sufficient to pay attorney fees to the employee's
14 31 attorney including costs of litigation; a sum sufficient to
14 32 indemnify the employer for all workers' compensation benefits
14 33 paid to the employee at the time of disbursement together with
14 34 interest calculated from the date benefits were paid; and the
14 35 balance of the net recovery shall be paid to the employee,
15 1 subject to the employer's future right of offset if the
15 2 employee's entitlement to workers' compensation is disputed at
15 3 the time of disbursement or additional benefits later become
15 4 due.
15 5 The bill also provides that satisfaction of the employer's
15 6 liability to the employee for benefits by an offset
15 7 constitutes indemnification of the employer to the extent of
15 8 the offset. The bill provides that an employee shall be
15 9 reimbursed for the employer's share of attorney fees within 30
15 10 days after submitting proof to the employer that the employee
15 11 has paid charges for services, such as medical and hospital
15 12 services, for which the employer would be liable if there had
15 13 not been a recovery from a third party. Amounts paid by an
15 14 employer as reimbursement for attorney fees shall be included
15 15 in the employee's net recovery allowed and are subject to the
15 16 employer's rights of offset for future liabilities.
15 17 The bill also provides that a settlement between an
15 18 employee or an employer and a third party is not effective
15 19 unless either the employee or employer who is not involved in
15 20 the settlement gives written consent or upon written approval
15 21 of the workers' compensation commissioner.
15 22 Code section 85.27, subsection 6, is amended to provide
15 23 that the workers' compensation commissioner shall impose a
15 24 civil penalty upon any person who willfully and knowingly
15 25 violates the subsection by undertaking debt collection against
15 26 an employee or an employee's dependents for treatment rendered
15 27 an employee by any health care provider relating to an injury
15 28 for which a claim for workers' compensation benefits is
15 29 pending. In that situation the commissioner is required to
15 30 impose a penalty of not less than $100 and not more than
15 31 $1,000 for each violation, payable to the employee or the
15 32 employee's dependents against whom the violation occurred.
15 33 Code section 85.27, subsection 7, is amended to provide
15 34 that for purposes of the section, "day of incapacity to work"
15 35 means eight hours of accumulated absence from work due to
16 1 incapacity to work or due to the receipt of services pursuant
16 2 to that section.
16 3 Code section 85.33, subsection 4, is amended to remove a
16 4 provision applicable to employees who work on the basis of
16 5 output or piecework which provides that such an injured
16 6 employee's minimum guarantee of pay instead of actual earnings
16 7 would be used to calculate the employee's weekly compensation
16 8 rate for temporary partial workers' compensation benefits.
16 9 The bill amends Code section 85.38 to provide that if an
16 10 employer denies liability under Code chapter 85 or 85B for
16 11 payment of weekly compensation requested by an employee and
16 12 the employee is a beneficiary under either an individual or
16 13 group plan for nonoccupational illness, injury, or disability,
16 14 the nonoccupational plan shall not deny payment of benefits
16 15 under the plan on the basis that the employer's liability
16 16 under Code chapter 85 or 85B is unresolved. Code section
16 17 85.38 currently requires payment by a nonoccupational plan for
16 18 any medical services received by an injured employee under
16 19 these circumstances.
16 20 The bill amends Code section 85.61, subsection 2, to
16 21 provide that an "employer", for purposes of Code chapters 85,
16 22 85B, 86, and 87, includes and applies to a person who
16 23 contracts with a contractor for purposes of the person's trade
16 24 or business as to personal injuries sustained by the employees
16 25 of the contractor arising out of and in the course of
16 26 performance of the contract with the person, if the contractor
16 27 has failed to insure the contractor's workers' compensation
16 28 liability or to obtain relief from workers' compensation
16 29 liability as provided in Code chapter 87. The provision also
16 30 states that a person who pays benefits pursuant to this
16 31 section is considered to be the employer for purposes of the
16 32 exclusive remedy provisions and for purposes of subrogation
16 33 and indemnity provisions. A person who pays benefits to the
16 34 employees of a contractor is entitled to be indemnified by the
16 35 contractor with interest and shall not be charged a premium
17 1 for workers' compensation insurance coverage for a
17 2 contractor's employees if the person holds a current
17 3 certificate of insurance or self=insurance showing that the
17 4 contractor is in compliance with Code chapter 87.
17 5 The bill amends Code section 85.61 to provide that an
17 6 "injury" or "personal injury" for purposes of this state's
17 7 workers' compensation laws includes a disease that results
17 8 from an injury and includes an occupational disease.
17 9 The bill amends Code section 86.24 to remove the
17 10 requirement that a party appealing a contested case proceeding
17 11 must file an affidavit with the commissioner that the
17 12 transcript of the proceedings has been ordered.
17 13 The bill adds new Code section 86.45 that defines
17 14 "confidential information" to mean all information that is
17 15 filed with the workers' compensation commissioner as a result
17 16 of an employee's injury or death that would allow
17 17 identification of the employee or the employee's dependents.
17 18 "Confidential information" includes first reports of injury
17 19 and subsequent reports of claim activity but does not include
17 20 pleadings, motions, decisions, opinions, or applications for
17 21 settlement that are filed with the workers' compensation
17 22 commissioner.
17 23 The bill provides that the workers' compensation
17 24 commissioner shall not disclose such confidential information
17 25 except pursuant to the terms of a written waiver of
17 26 confidentiality executed by the employee or the dependents of
17 27 the employee whose information is filed with the workers'
17 28 compensation commissioner; to another governmental agency or
17 29 to an advisory, rating, or research organization for the
17 30 purpose of compiling statistical data, or conducting
17 31 scientific, medical, or public policy research, where such
17 32 disclosure will not allow identification of the employee or
17 33 the employee's dependents; to the employee or to the agent or
17 34 attorney of the employee whose information is filed with the
17 35 workers' compensation commissioner; to the person or agent of
18 1 the person who submitted the information to the workers'
18 2 compensation commissioner; to an agent, representative,
18 3 attorney, investigator, consultant, or adjuster of an
18 4 employer, or insurance carrier or third=party administrator of
18 5 workers' compensation benefits, who is involved in
18 6 administering a claim for such benefits related to the injury
18 7 or death of the employee whose information is filed with the
18 8 workers' compensation commissioner; to all parties to a
18 9 contested case proceeding before the workers' compensation
18 10 commissioner in which the employee or a dependent of the
18 11 employee, whose information is filed with the workers'
18 12 compensation commissioner, is a party; in compliance with a
18 13 subpoena; or to an agent, representative, attorney,
18 14 investigator, consultant, or adjuster of the employee,
18 15 employer, or insurance carrier or third=party administrator of
18 16 insurance benefits, who is involved in administering a claim
18 17 for insurance benefits related to the injury or death of the
18 18 employee whose information is filed with the workers'
18 19 compensation commissioner.
18 20 The bill also provides that new Code section 86.45 does not
18 21 create a cause of action for a violation of its provisions
18 22 against the workers' compensation commissioner or against the
18 23 state or any governmental subdivision of the state.
18 24 Code section 87.8 is amended by the bill to provide that an
18 25 insurer must pay, when due, all benefits and compensation for
18 26 which the insured is liable under this state's workers'
18 27 compensation laws, regardless of whether the insured has
18 28 reimbursed the insurer or paid any deductible due under the
18 29 insurance policy.
18 30 The bill also repeals Code chapter 85A that dealt
18 31 separately with the payment of workers' compensation for
18 32 occupational disease. Currently, under Code chapter 85A, an
18 33 employee cannot receive workers' compensation benefits for an
18 34 occupational disease, unless disablement or death from the
18 35 disease results within three years, in the case of the disease
19 1 of pneumoconiosis, or within one year in the case of any other
19 2 occupational disease, after the employee's last injurious
19 3 exposure to the disease in the employment. By amending Code
19 4 chapter 85 to provide that an injury for purposes of that
19 5 chapter includes an occupational disease, an employee can
19 6 receive compensation for an occupational disease if the
19 7 employee commences a proceeding within two years from the date
19 8 of the injury. "Date of injury", for purposes of Code chapter
19 9 85, has been interpreted by the Iowa Supreme Court to be "the
19 10 date on which the claimant, as a reasonable person, would be
19 11 plainly aware of the injury and the causal relationship
19 12 between the injury and the claimant's employment". Weishaar
19 13 v. Snap=On Tools Corp., 582 N.W.2d 177, 181 (Iowa 1998). This
19 14 so=called "discovery rule" allows an employee to receive
19 15 compensation for an injury or disease that does not become
19 16 apparent for some time and does not require claims to be made
19 17 within a specific period of time after the last injurious
19 18 exposure or end of employment.
19 19 The bill also contains numerous coordinating amendments
19 20 that remove references to Code chapter 85A, which is repealed
19 21 by the bill.
19 22 LSB 2234SS 81
19 23 av:nh/sh/8.1