H.F. _____ Section 1. Section 85.36, Code 2009, is amended to read as 1 follows: 2 85.36 Basis of computation. 3 1. The basis of compensation shall be the weekly earnings 4 of the injured employee at the time of the injury. Weekly 5 earnings means gross salary, wages, or earnings of an employee 6 to which such employee would have been entitled had the 7 employee worked the customary hours for the full pay period in 8 which the employee was injured, as regularly required by the 9 employee’s employer for the work or employment for which the 10 employee was employed, computed or determined as follows and 11 then rounded to the nearest dollar: 12 1. a. In the case of an employee who is paid on a weekly 13 pay period basis, the weekly gross earnings. 14 2. b. In the case of an employee who is paid on a biweekly 15 pay period basis, one-half of the biweekly gross earnings. 16 3. c. In the case of an employee who is paid on a 17 semimonthly pay period basis, the semimonthly gross earnings 18 multiplied by twenty-four and subsequently divided by 19 fifty-two. 20 4. d. In the case of an employee who is paid on a monthly 21 pay period basis, the monthly gross earnings multiplied by 22 twelve and subsequently divided by fifty-two. 23 5. e. In the case of an employee who is paid on a yearly 24 pay period basis, the weekly earnings shall be the yearly 25 earnings divided by fifty-two. 26 6. f. In the case of an employee who is paid on a daily 27 or hourly basis, or by the output of the employee, the 28 weekly earnings shall be computed by dividing by thirteen the 29 earnings, including overtime, shift differential pay but not 30 including overtime or , and premium pay, of the employee earned 31 in the employ of the employer in the last completed period 32 of thirteen consecutive calendar weeks immediately preceding 33 the injury. If the employee was absent from employment for 34 reasons personal to the employee during part of the thirteen 35 -1- LSB 5737HC (4) 83 av/nh 1/ 5

H.F. _____ calendar weeks preceding the injury, the employee’s weekly 1 earnings shall be the amount the employee would have earned had 2 the employee worked when work was available to other employees 3 of the employer in a similar occupation. A week which does 4 not fairly reflect the employee’s customary earnings shall be 5 replaced by the closest previous week with earnings that fairly 6 represent the employee’s customary earnings. 7 7. g. In the case of an employee who has been in the employ 8 of the employer less than thirteen calendar weeks immediately 9 preceding the injury, the employee’s weekly earnings shall 10 be computed under subsection 6 paragraph “f” , taking the 11 earnings, including overtime, shift differential pay but not 12 including overtime or , and premium pay, for such purpose to 13 be the amount the employee would have earned had the employee 14 been so employed by the employer the full thirteen calendar 15 weeks immediately preceding the injury and had worked, when 16 work was available to other employees in a similar occupation. 17 If the earnings of other employees cannot be determined, the 18 employee’s weekly earnings shall be the average computed for 19 the number of weeks the employee has been in the employ of the 20 employer. 21 h. In the case of an employee injured in the course of 22 performing as a professional athlete, the basis of compensation 23 for weekly earnings shall be one-fiftieth of total earnings 24 which the employee has earned from all employment for the 25 previous twelve months prior to the injury. 26 8. 2. If at the time of the injury the hourly earnings 27 have not been fixed or cannot be ascertained, the earnings for 28 the purpose of calculating compensation shall be taken to be 29 the usual earnings for similar services where such services are 30 rendered by paid employees. 31 9. 3. If an employee earns either no wages or less than the 32 usual weekly earnings of the regular full-time adult laborer 33 in the line of industry in which the employee is injured in 34 that locality, the weekly earnings shall be one-fiftieth of 35 -2- LSB 5737HC (4) 83 av/nh 2/ 5

H.F. _____ the total earnings which the employee has earned from all 1 employment during the twelve calendar months immediately 2 preceding the injury. 3 a. In computing the compensation to be allowed a volunteer 4 fire fighter, emergency medical care provider, reserve peace 5 officer, volunteer ambulance driver, volunteer emergency rescue 6 technician as defined in section 147A.1, or emergency medical 7 technician trainee, the earnings as a fire fighter, emergency 8 medical care provider, reserve peace officer, volunteer 9 ambulance driver, volunteer emergency rescue technician, or 10 emergency medical technician trainee shall be disregarded and 11 the volunteer fire fighter, emergency medical care provider, 12 reserve peace officer, volunteer ambulance driver, volunteer 13 emergency rescue technician, or emergency medical technician 14 trainee shall be paid an amount equal to the compensation 15 the volunteer fire fighter, emergency medical care provider, 16 reserve peace officer, volunteer ambulance driver, volunteer 17 emergency rescue technician, or emergency medical technician 18 trainee would be paid if injured in the normal course of the 19 volunteer fire fighter’s, emergency medical care provider’s, 20 reserve peace officer’s, volunteer ambulance driver’s, 21 volunteer emergency rescue technician’s, or emergency medical 22 technician trainee’s regular employment or an amount equal to 23 one hundred and forty percent of the statewide average weekly 24 wage, whichever is greater. 25 b. If the employee was an apprentice or trainee when 26 injured, and it is established under normal conditions the 27 employee’s earnings should be expected to increase during the 28 period of disability, that fact may be considered in computing 29 the employee’s weekly earnings. 30 c. If the employee was an inmate as defined in section 31 85.59, the inmate’s actual earnings shall be disregarded, and 32 the weekly compensation rate shall be as set forth in section 33 85.59. 34 10. 4. If a wage, or method of calculating a wage, is 35 -3- LSB 5737HC (4) 83 av/nh 3/ 5

H.F. _____ used for the basis of the payment of a workers’ compensation 1 insurance premium for a proprietor, partner, limited liability 2 company member, limited liability partner, or officer of a 3 corporation, the wage or the method of calculating the wage 4 is determinative for purposes of computing the proprietor’s, 5 partner’s, limited liability company member’s, limited 6 liability partner’s, or officer’s weekly workers’ compensation 7 benefit rate. 8 11. 5. In computing the compensation to be allowed an 9 elected or appointed official, the official may choose either 10 of the following payment options: 11 a. The official shall be paid an amount of compensation 12 based on the official’s weekly earnings as an elected or 13 appointed official. 14 b. The earnings of the official as an elected or appointed 15 official shall be disregarded and the official shall be paid 16 an amount equal to one hundred forty percent of the statewide 17 average weekly wage. 18 12. In the case of an employee injured in the course of 19 performing as a professional athlete, the basis of compensation 20 for weekly earnings shall be one-fiftieth of total earnings 21 which the employee has earned from all employment for the 22 previous twelve months prior to the injury. 23 6. The basis of compensation for permanent total disability 24 benefits or death benefits shall adjust on January 1 of 25 each year for compensation which becomes due that year by 26 a percentage equal to the cost-of-living adjustment made 27 to disability benefits payable by the United States social 28 security administration in December of the immediately 29 preceding year. 30 Sec. 2. Section 85.61, subsection 3, Code 2009, is amended 31 to read as follows: 32 3. “Gross earnings” means recurring payments by employer to 33 the employee for employment, before any authorized or lawfully 34 required deduction or withholding of funds by the employer, 35 -4- LSB 5737HC (4) 83 av/nh 4/ 5

H.F. _____ excluding irregular bonuses, retroactive pay, overtime, penalty 1 pay, reimbursement of expenses, expense allowances, and the 2 employer’s contribution for welfare benefits. 3 EXPLANATION 4 This bill requires certain weekly workers’ compensation 5 benefits to be calculated by including an employee’s overtime 6 and premium pay, and to include an annual cost-of-living 7 adjustment. 8 The bill amends Code section 85.36 to require the 9 calculation of the amount of weekly workers’ compensation 10 benefits to include, not exclude, an employee’s earnings for 11 overtime and premium pay. A coordinating amendment is made to 12 Code section 85.61. 13 The bill also amends Code section 85.36 to require the basis 14 of compensation for weekly worker’s compensation benefits 15 payable for permanent total disability benefits or death 16 benefits to adjust on January 1 each year for compensation 17 which becomes due that year, by a percentage equal to the 18 cost-of-living adjustment made to disability benefits payable 19 by the United States social security administration in December 20 of the immediately preceding year. 21 Technical corrections are also made to Code section 85.36 to 22 remove an unnumbered paragraph and for purposes of clarity. 23 -5- LSB 5737HC (4) 83 av/nh 5/ 5