Senate File 435 - Introduced SENATE FILE 435 BY COMMITTEE ON COMMERCE (SUCCESSOR TO SSB 1170) (COMPANION TO LSB 1691HV BY COMMITTEE ON COMMERCE) A BILL FOR An Act relating to workers’ compensation and including 1 effective date and applicability provisions. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 1691SV (1) 87 av/rj

S.F. 435 Section 1. Section 85.16, subsection 2, Code 2017, is 1 amended to read as follows: 2 2. a. By the employee’s intoxication, which did not arise 3 out of and in the course of employment but which was due 4 to the effects of alcohol or another narcotic, depressant, 5 stimulant, hallucinogenic, or hypnotic drug not prescribed by 6 an authorized medical practitioner, if the intoxication was a 7 substantial factor in causing the injury. 8 b. For the purpose of disallowing compensation under this 9 subsection, both of the following apply: 10 (1) If the employer shows that, at the time of the injury 11 or immediately following the injury, the employee had positive 12 test results reflecting the presence of alcohol, or another 13 narcotic, depressant, stimulant, hallucinogenic, or hypnotic 14 drug which drug either was not prescribed by an authorized 15 medical practitioner or was not used in accordance with the 16 prescribed use of the drug, it shall be presumed that the 17 employee was intoxicated at the time of the injury and that 18 intoxication was the predominant factor in causing the injury. 19 (2) Once the employer has made a showing as provided 20 in subparagraph (1), the burden of proof shall be on the 21 employee to overcome the presumption by establishing that the 22 employee was not intoxicated at the time of the injury, or that 23 intoxication was not the predominant factor in causing the 24 injury. 25 Sec. 2. Section 85.18, Code 2017, is amended to read as 26 follows: 27 85.18 Contract to relieve not operative. 28 No contract, rule, or device whatsoever shall operate to 29 relieve the employer, in whole or in part, from any liability 30 created by this chapter except as herein provided. This 31 section does not create a private cause of action. 32 Sec. 3. Section 85.23, Code 2017, is amended to read as 33 follows: 34 85.23 Notice of injury —— failure to give. 35 -1- LSB 1691SV (1) 87 av/rj 1/ 20

S.F. 435 Unless the employer or the employer’s representative shall 1 have actual knowledge of the occurrence of an injury received 2 within ninety days from the date of the occurrence of the 3 injury, or unless the employee or someone on the employee’s 4 behalf or a dependent or someone on the dependent’s behalf 5 shall give notice thereof to the employer within ninety days 6 from the date of the occurrence of the injury, no compensation 7 shall be allowed. For the purposes of this section, “date of 8 the occurrence of the injury” means the date that the employee 9 knew or should have known that the injury was work-related. 10 Sec. 4. Section 85.26, subsection 1, Code 2017, is amended 11 to read as follows: 12 1. An original proceeding for benefits under this chapter 13 or chapter 85A , 85B , or 86 , shall not be maintained in any 14 contested case unless the proceeding is commenced within two 15 years from the date of the occurrence of the injury for which 16 benefits are claimed or, if weekly compensation benefits are 17 paid under section 86.13 , within three years from the date of 18 the last payment of weekly compensation benefits. For the 19 purposes of this section, “date of the occurrence of the injury” 20 means the date that the employee knew or should have known that 21 the injury was work-related. 22 Sec. 5. Section 85.33, subsection 3, Code 2017, is amended 23 to read as follows: 24 3. a. If an employee is temporarily, partially disabled 25 and the employer for whom the employee was working at the time 26 of injury offers to the employee suitable work consistent 27 with the employee’s disability the employee shall accept the 28 suitable work, and be compensated with temporary partial 29 benefits. If the employer offers the employee suitable work 30 and the employee refuses to accept the suitable work with 31 the same offered by the employer, the employee shall not be 32 compensated with temporary partial, temporary total, or healing 33 period benefits during the period of the refusal. Work offered 34 at the employer’s principal place of business or established 35 -2- LSB 1691SV (1) 87 av/rj 2/ 20

S.F. 435 place of operation where the employee has previously worked is 1 presumed to be geographically suitable for an employee whose 2 duties involve travel away from the employer’s principal place 3 of business or established place of operation more than fifty 4 percent of the time. If suitable work is not offered by the 5 employer for whom the employee was working at the time of the 6 injury and the employee who is temporarily partially disabled 7 elects to perform work with a different employer, the employee 8 shall be compensated with temporary partial benefits. 9 b. The employer shall communicate an offer of temporary 10 work to the employee in writing, including details of lodging, 11 meals, and transportation, and shall communicate to the 12 employee that if the employee refuses the offer of temporary 13 work, the employee shall communicate the refusal and the reason 14 for the refusal to the employer in writing and that during the 15 period of the refusal the employee will not be compensated with 16 temporary partial, temporary total, or healing period benefits, 17 unless the work refused is not suitable. If the employee 18 refuses the offer of temporary work on the grounds that the 19 work is not suitable, the employee shall communicate the 20 refusal, along with the reason for the refusal, to the employer 21 in writing at the time the offer of work is refused. Failure to 22 communicate the reason for the refusal in this manner precludes 23 the employee from raising suitability of the work as the reason 24 for the refusal until such time as the reason for the refusal 25 is communicated in writing to the employer. 26 Sec. 6. Section 85.34, subsection 2, unnumbered paragraph 27 1, Code 2017, is amended to read as follows: 28 Compensation for permanent partial disability shall begin at 29 the termination of the healing period provided in subsection 1 30 when it is medically indicated that maximum medical improvement 31 from the injury has been reached and that the extent of loss or 32 percentage of permanent impairment can be determined by use of 33 the guides to the evaluation of permanent impairment, published 34 by the American medical association, as adopted by the workers’ 35 -3- LSB 1691SV (1) 87 av/rj 3/ 20

S.F. 435 compensation commissioner by rule pursuant to chapter 17A . The 1 compensation shall be in addition to the benefits provided by 2 sections 85.27 and 85.28 . The compensation shall be based 3 upon the extent of the disability and upon the basis of eighty 4 percent per week of the employee’s average spendable weekly 5 earnings, but not more than a weekly benefit amount, rounded to 6 the nearest dollar, equal to one hundred eighty-four percent of 7 the statewide average weekly wage paid employees as determined 8 by the department of workforce development under section 96.19, 9 subsection 36 , and in effect at the time of the injury. The 10 minimum weekly benefit amount shall be equal to the weekly 11 benefit amount of a person whose gross weekly earnings are 12 thirty-five percent of the statewide average weekly wage. For 13 all cases of permanent partial disability compensation shall 14 be paid as follows: 15 Sec. 7. Section 85.34, subsection 2, paragraphs m and u, 16 Code 2017, are amended to read as follows: 17 m. The loss of two-thirds of that part of an arm between 18 including the shoulder joint and to the elbow joint shall equal 19 the loss of an arm and the compensation therefor shall be 20 weekly compensation during two hundred fifty weeks. 21 u. In all cases of permanent partial disability other than 22 those hereinabove described or referred to in paragraphs “a” 23 through “t” hereof, the compensation shall be paid during 24 the number of weeks in relation to five hundred weeks as the 25 reduction in the employee’s earning capacity caused by the 26 disability bears in relation to the earning capacity that the 27 employee possessed when the injury occurred. A determination 28 of the reduction in the employee’s earning capacity caused 29 by the disability shall take into account the permanent 30 partial disability of the employee and the number of years in 31 the future it was reasonably anticipated that the employee 32 would work at the time of the injury. If an employee who is 33 eligible for compensation under this paragraph returns to work 34 or is offered work for which the employee receives or would 35 -4- LSB 1691SV (1) 87 av/rj 4/ 20

S.F. 435 receive the same or greater salary, wages, or earnings than 1 the employee received at the time of the injury, the employee 2 shall be compensated based only upon the employee’s functional 3 disability resulting from the injury, and not in relation to 4 the employee’s earning capacity. If an employee sustains an 5 injury compensable under this paragraph after reaching the age 6 of sixty-seven, compensation shall be paid to the employee 7 based on the employee’s resulting loss of earning capacity 8 not to exceed an amount equal to one hundred fifty weeks of 9 compensation. 10 Sec. 8. Section 85.34, subsection 2, Code 2017, is amended 11 by adding the following new paragraphs: 12 NEW PARAGRAPH . w. In all cases of permanent partial 13 disability described in paragraphs “a” through “t” , or paragraph 14 “u” when determining functional disability and not loss of 15 earning capacity, the extent of loss or percentage of permanent 16 impairment shall be determined solely by utilizing the guides 17 to the evaluation of permanent impairment, published by the 18 American medical association, as adopted by the workers’ 19 compensation commissioner by rule pursuant to chapter 17A. 20 Lay testimony or agency expertise shall not be utilized in 21 determining loss or percentage of permanent impairment pursuant 22 to paragraphs “a” through “t” , or paragraph “u” when determining 23 functional disability and not loss of earning capacity. 24 NEW PARAGRAPH . x. Compensation for permanent partial 25 disability for an injury shall terminate on the date when 26 compensation for permanent total disability for any injury 27 begins. An employee shall not receive compensation for 28 permanent partial disability if the employee is receiving 29 compensation for permanent total disability. 30 Sec. 9. Section 85.34, subsection 3, Code 2017, is amended 31 to read as follows: 32 3. Permanent total disability. 33 a. Compensation for an injury causing permanent total 34 disability shall be upon the basis of eighty percent per week 35 -5- LSB 1691SV (1) 87 av/rj 5/ 20

S.F. 435 of the employee’s average spendable weekly earnings, but not 1 more than a weekly benefit amount, rounded to the nearest 2 dollar, equal to two hundred percent of the statewide average 3 weekly wage paid employees as determined by the department 4 of workforce development under section 96.19, subsection 36 , 5 and in effect at the time of the injury. The minimum weekly 6 benefit amount is equal to the weekly benefit amount of a 7 person whose gross weekly earnings are thirty-five percent of 8 the statewide average weekly wage. The weekly compensation is 9 payable during the period of the employee’s disability until 10 the employee is no longer permanently and totally disabled or 11 until the employee reaches the age of sixty-seven, whichever 12 occurs first . If an employee sustains an injury compensable 13 under this subsection after reaching the age of sixty-seven, 14 compensation shall be paid to the employee so long as the 15 employee remains permanently and totally disabled not to exceed 16 an amount equal to one hundred fifty weeks of compensation. 17 b. Such compensation shall be in addition to the benefits 18 provided in sections 85.27 and 85.28 . No compensation shall 19 be payable under this subsection for any injury for which 20 compensation is payable under subsection 2 of this section . 21 In the event compensation has been paid to any person under 22 any provision of this chapter , chapter 85A or chapter 85B for 23 the same an injury producing a total permanent disability, any 24 such amounts so paid shall be deducted from the total amount 25 of compensation payable for such permanent total disability. 26 An employee shall not receive compensation for permanent 27 partial disability if the employee is receiving compensation 28 for permanent total disability. 29 Sec. 10. Section 85.34, subsection 3, Code 2017, is amended 30 by adding the following new paragraphs: 31 NEW PARAGRAPH . c. An employee forfeits the employee’s 32 weekly compensation for a permanent total disability under this 33 subsection for a week in which the employee is receiving a 34 payment equal to or greater than fifty percent of the statewide 35 -6- LSB 1691SV (1) 87 av/rj 6/ 20

S.F. 435 average weekly wage from any of the following sources: 1 (1) Gross earnings from any employer. 2 (2) Payment for services from any source. 3 NEW PARAGRAPH . d. An employee is not entitled to 4 compensation for a permanent total disability under this 5 subsection while the employee is receiving unemployment 6 compensation under chapter 96. 7 Sec. 11. Section 85.34, subsections 4 and 5, Code 2017, are 8 amended to read as follows: 9 4. Credits for excess payments. If an employee is paid 10 weekly compensation benefits for temporary total disability 11 under section 85.33, subsection 1 , for a healing period 12 under section 85.34, subsection 1 , or for temporary partial 13 disability under section 85.33, subsection 2 , in excess of 14 that required by this chapter and chapters 85A , 85B , and 86 , 15 the excess paid by the employer shall be credited against the 16 liability of the employer for permanent partial disability 17 under section 85.34, subsection 2 any future weekly benefits 18 due for an injury to that employee , provided that the employer 19 or the employer’s representative has acted in good faith in 20 determining and notifying an employee when the temporary total 21 disability, healing period, or temporary partial disability 22 benefits are terminated. 23 5. Recovery of employee overpayment. If an employee is paid 24 any weekly benefits in excess of that required by this chapter 25 and chapters 85A , 85B , and 86 , the excess paid by the employer 26 shall be credited against the liability of the employer for 27 any future weekly benefits due pursuant to subsection 2 , for 28 a any current or subsequent injury to the same employee. An 29 overpayment can be established only when the overpayment is 30 recognized in a settlement agreement approved under section 31 86.13 , pursuant to final agency action in a contested case 32 which was commenced within three years from the date that 33 weekly benefits were last paid for the claim for which the 34 benefits were overpaid, or pursuant to final agency action 35 -7- LSB 1691SV (1) 87 av/rj 7/ 20

S.F. 435 in a contested case for a prior injury to the same employee. 1 The credit shall remain available for eight years after the 2 date the overpayment was established. If an overpayment 3 is established pursuant to this subsection , the employee 4 and employer may enter into a written settlement agreement 5 providing for the repayment by the employee of the overpayment. 6 The agreement is subject to the approval of the workers’ 7 compensation commissioner. The employer shall not take any 8 adverse action against the employee for failing to agree to 9 such a written settlement agreement. 10 Sec. 12. Section 85.34, subsection 7, paragraph a, Code 11 2017, is amended to read as follows: 12 a. An employer is fully liable for compensating all only 13 that portion of an employee’s disability that arises out of and 14 in the course of the employee’s employment with the employer 15 and that relates to the injury that serves as the basis for 16 the employee’s claim for compensation under this chapter, 17 or chapter 85A, 85B, or 86 . An employer is not liable for 18 compensating an employee’s preexisting disability that arose 19 out of and in the course of employment from a prior injury with 20 the employer, to the extent that the employee’s preexisting 21 disability has already been compensated under this chapter, 22 or chapter 85A, 85B, or 86. An employer is not liable for 23 compensating an employee’s preexisting disability that arose 24 out of and in the course of employment with a different 25 employer or from causes unrelated to employment. 26 Sec. 13. Section 85.34, subsection 7, paragraphs b and c, 27 Code 2017, are amended by striking the paragraphs. 28 Sec. 14. Section 85.39, Code 2017, is amended to read as 29 follows: 30 85.39 Examination of injured employees. 31 1. After an injury, the employee, if requested by the 32 employer, shall submit for examination at some reasonable 33 time and place and as often as reasonably requested, to a 34 physician or physicians authorized to practice under the laws 35 -8- LSB 1691SV (1) 87 av/rj 8/ 20

S.F. 435 of this state or another state, without cost to the employee; 1 but if the employee requests, the employee, at the employee’s 2 own cost, is entitled to have a physician or physicians 3 of the employee’s own selection present to participate in 4 the examination. If an employee is required to leave work 5 for which the employee is being paid wages to attend the 6 requested examination, the employee shall be compensated at 7 the employee’s regular rate for the time the employee is 8 required to leave work, and the employee shall be furnished 9 transportation to and from the place of examination, or the 10 employer may elect to pay the employee the reasonable cost of 11 the transportation. The refusal of the employee to submit to 12 the examination shall suspend forfeit the employee’s right to 13 any compensation for the period of the refusal. Compensation 14 shall not be payable for the period of suspension refusal . 15 2. If an evaluation of permanent disability has been made by 16 a physician retained by the employer and the employee believes 17 this evaluation to be too low, the employee shall, upon 18 application to the commissioner and upon delivery of a copy of 19 the application to the employer and its insurance carrier, be 20 reimbursed by the employer the reasonable fee for a subsequent 21 examination by a physician of the employee’s own choice, and 22 reasonably necessary transportation expenses incurred for the 23 examination. The physician chosen by the employee has the 24 right to confer with and obtain from the employer-retained 25 physician sufficient history of the injury to make a proper 26 examination. An employer is only liable to reimburse an 27 employee for the cost of an examination conducted pursuant to 28 this subsection if the injury for which the employee is being 29 examined is determined to be compensable under this chapter or 30 chapter 85A or 85B. An employer is not liable for the cost of 31 such an examination if the injury for which the employee is 32 being examined is determined not to be a compensable injury. A 33 determination of the reasonableness of a fee for an examination 34 made pursuant to this subsection, shall be based on the typical 35 -9- LSB 1691SV (1) 87 av/rj 9/ 20

S.F. 435 fee charged by a medical provider to perform an impairment 1 rating in the local area where the examination is conducted. 2 Sec. 15. Section 85.45, subsection 1, unnumbered paragraph 3 1, Code 2017, is amended to read as follows: 4 Future payments of compensation may be commuted to a present 5 worth lump sum payment only upon application of a party to 6 the commissioner and upon written consent of all parties to 7 the proposed commutation or partial commutation, and on the 8 following conditions: 9 Sec. 16. Section 85.45, Code 2017, is amended by adding the 10 following new subsection: 11 NEW SUBSECTION . 3. The parties to any commutation or 12 partial commutation of future payments agreed to and ordered 13 pursuant to this section may agree that the employee has the 14 right to benefits pursuant to section 85.27 under such terms 15 and conditions as agreed to by the parties, for a specified 16 period of time after the commutation or partial commutation 17 agreement has been ordered by the workers’ compensation 18 commissioner. During that specified period of time, the 19 commissioner shall have jurisdiction of the commutation or 20 partial commutation agreement for the purpose of adjudicating 21 the employee’s entitlement to benefits provided for in section 22 85.27 as provided in the agreement. 23 Sec. 17. Section 85.61, subsection 7, unnumbered paragraph 24 1, Code 2017, is amended to read as follows: 25 The words “personal injury arising out of and in the course 26 of the employment” shall include injuries to employees whose 27 services are being performed on, in, or about the premises 28 which are occupied, used, or controlled by the employer, and 29 also injuries to those who are engaged elsewhere in places 30 where their employer’s business requires their presence and 31 subjects them to dangers incident to the business but only 32 if such injuries are found to be the predominant factor in 33 causing the disability for which compensation is claimed under 34 this chapter, or chapter 85A or 85B . For purposes of this 35 -10- LSB 1691SV (1) 87 av/rj 10/ 20

S.F. 435 subsection, an injury is the predominant factor in causing a 1 disability if more than fifty percent of the disability is 2 attributable to the injury. 3 Sec. 18. Section 85.71, subsection 1, paragraph a, Code 4 2017, is amended to read as follows: 5 a. The employer has a place of business in this state and 6 the employee regularly works at or from that place of business , 7 or the employer has a place of business in this state and the 8 employee is domiciled in this state . 9 Sec. 19. Section 86.26, Code 2017, is amended to read as 10 follows: 11 86.26 Judicial review. 12 1. Judicial review of decisions or orders of the workers’ 13 compensation commissioner may be sought in accordance 14 with chapter 17A . Notwithstanding chapter 17A , the Iowa 15 administrative procedure Act, petitions for judicial review 16 may be filed in the district court of the county in which the 17 hearing under section 86.17 was held, the workers’ compensation 18 commissioner shall transmit to the reviewing court the original 19 or a certified copy of the entire record of the contested case 20 which is the subject of the petition within thirty days after 21 receiving written notice from the party filing the petition 22 that a petition for judicial review has been filed, and an 23 application for stay of agency action during the pendency of 24 judicial review shall not be filed in the division of workers’ 25 compensation of the department of workforce development 26 but shall be filed with the district court. Such a review 27 proceeding shall be accorded priority over other matters 28 pending before the district court. 29 2. Notwithstanding section 17A.19, subsection 5, a timely 30 petition for judicial review filed pursuant to this section 31 shall stay execution or enforcement of a decision or order of 32 the workers’ compensation commissioner if the party seeking 33 judicial review posts a bond securing any compensation awarded 34 pursuant to the decision or order with the district court 35 -11- LSB 1691SV (1) 87 av/rj 11/ 20

S.F. 435 within thirty days of filing the petition, in a reasonable 1 amount as fixed and approved by the court. Unless either the 2 party posting the bond files an objection with the court, 3 within twenty days from the date that the bond is fixed and 4 approved by the court, that the amount of the bond is not 5 reasonable, or the party whose interests are protected by the 6 bond files an objection with the court, within twenty days from 7 the date that the amount of the bond is fixed and approved by 8 the court, that the amount of the bond is not reasonable or 9 adequate, the amount of the bond shall be deemed reasonable and 10 adequate. If, upon objection, the district court orders the 11 amount of the bond posted to be modified, the party seeking 12 judicial review shall repost the bond in the amount ordered, 13 within twenty days of the date of the order modifying the bond, 14 in order to continue the stay of execution or enforcement 15 of the decision or order of the workers’ compensation 16 commissioner. 17 Sec. 20. Section 86.39, Code 2017, is amended to read as 18 follows: 19 86.39 Fees —— approval. 20 1. All fees or claims for legal, medical, hospital, and 21 burial services rendered under this chapter and chapters 85 , 22 85A , 85B , and 87 are subject to the approval of the workers’ 23 compensation commissioner. For services rendered in the 24 district court and appellate courts, the attorney fee is 25 subject to the approval of a judge of the district court. 26 2. An attorney shall not recover fees for legal services 27 based on the amount of compensation voluntarily paid or 28 agreed to be paid to an employee for temporary or permanent 29 disability under this chapter, or chapter 85, 85A, 85B, or 30 87. An attorney shall only recover a fee based on the amount 31 of compensation that the attorney demonstrates would not have 32 been paid to the employee but for the efforts of the attorney. 33 Any disputes over the recovery of attorney fees under this 34 subsection shall be resolved by the workers’ compensation 35 -12- LSB 1691SV (1) 87 av/rj 12/ 20

S.F. 435 commissioner. 1 Sec. 21. Section 86.42, Code 2017, is amended to read as 2 follows: 3 86.42 Judgment by district court on award. 4 Any party in interest may present a file-stamped copy 5 of an order or decision of the commissioner, from which a 6 timely petition for judicial review has not been filed or if 7 judicial review has been filed, which has not had execution or 8 enforcement stayed as provided in section 17A.19, subsection 9 5 , or section 86.26, subsection 2, or an order or decision 10 of a deputy commissioner from which a timely appeal has not 11 been taken within the agency and which has become final by 12 the passage of time as provided by rule and section 17A.15 , 13 or an agreement for settlement approved by the commissioner, 14 and all papers in connection therewith, to the district court 15 where judicial review of the agency action may be commenced. 16 The court shall render a decree or judgment and cause the 17 clerk to notify the parties. The decree or judgment, in the 18 absence of a petition for judicial review or if judicial review 19 has been commenced, in the absence of a stay of execution 20 or enforcement of the decision or order of the workers’ 21 compensation commissioner as provided in section 17A.19, 22 subsection 5, or section 86.26, subsection 2 , or in the absence 23 of an act of any party which prevents a decision of a deputy 24 workers’ compensation commissioner from becoming final, has the 25 same effect and in all proceedings in relation thereto is the 26 same as though rendered in a suit duly heard and determined by 27 the court. 28 Sec. 22. Section 535.3, subsection 1, Code 2017, is amended 29 to read as follows: 30 1. a. Interest shall be allowed on all money due on 31 judgments and decrees of courts at a rate calculated according 32 to section 668.13 , except for interest due pursuant to section 33 85.30 for which the rate shall be ten percent per year . 34 b. Notwithstanding paragraph “a” , interest due pursuant 35 -13- LSB 1691SV (1) 87 av/rj 13/ 20

S.F. 435 to section 85.30 shall accrue from the date each compensation 1 payment is due at an annual rate equal to the one-year treasury 2 constant maturity published by the federal reserve in the most 3 recent H15 report settled prior to the date each compensation 4 payment is due plus two percent. 5 Sec. 23. EFFECTIVE UPON ENACTMENT. This Act, being deemed 6 of immediate importance, takes effect upon enactment. 7 Sec. 24. APPLICABILITY. 8 1. The sections of this Act amending sections 85.16, 85.18, 9 85.23, 85.26, 85.33, 85.34, 85.39, 85.61, 85.71, 86.26, 86.39, 10 and 86.42 apply to injuries occurring on or after the effective 11 date of this Act. 12 2. The sections of this Act amending section 85.45 apply to 13 commutations for which applications are filed on or after the 14 effective date of this Act. 15 EXPLANATION 16 The inclusion of this explanation does not constitute agreement with 17 the explanation’s substance by the members of the general assembly. 18 This bill contains various provisions relating to workers’ 19 compensation. 20 Code section 85.16(2) is amended to provide that if an 21 employer shows that at the time of an injury for which workers’ 22 compensation is sought, an employee had positive test results 23 reflecting the presence of alcohol or drugs, there is a 24 presumption that the employee was intoxicated at the time of 25 the injury, and the intoxication was the predominant factor in 26 causing the injury, making the injury not compensable. The 27 provision also allows the employee to overcome that presumption 28 by establishing that the employee was not intoxicated or that 29 intoxication was not the predominant factor in causing the 30 injury. 31 Code section 85.18 is amended to provide that imposition of 32 liability on any employer under Code chapter 85 does not create 33 a private cause of action. 34 Code section 85.23 requiring notice of injury and Code 35 -14- LSB 1691SV (1) 87 av/rj 14/ 20

S.F. 435 section 85.26(1) concerning limitations of actions, are amended 1 to define “date of the occurrence of the injury” to mean the 2 date the employee knew or should have known that the injury was 3 work-related. 4 Code section 85.33(3) concerning an employee who is 5 temporarily, partially disabled, is amended to include 6 requirements for offers of temporary work by employers 7 to employees who are temporarily, partially disabled and 8 requirements for refusal of such work as not suitable by an 9 employee. An employee cannot raise suitability as a reason 10 until such time as the refusal and reason are communicated to 11 the employer in writing. 12 Code section 85.34(2), concerning compensation for 13 permanent partial disability, is amended to provide that such 14 compensation begins when it is medically indicated that maximum 15 medical improvement from the injury has been reached and that 16 the extent of loss or percentage of permanent impairment can be 17 determined by use of the guides to the evaluation of permanent 18 impairment, published by the American medical association, 19 as adopted by the workers’ compensation commissioner by rule 20 pursuant to Code chapter 17A. 21 Code section 85.34(2)(m) is amended to modify language 22 providing compensation for a scheduled injury describing the 23 whole rather than two-thirds of the upper arm. 24 Code section 85.34(2)(u) concerning compensation for 25 permanent partial disability for injuries other than scheduled 26 injuries under Code section 85.34(2), paragraphs “a” through 27 “t”, is amended to provide that a reduction in the employee’s 28 earning capacity caused by a disability must take into account 29 the employee’s permanent partial disability and the number of 30 years in the future it was reasonably anticipated the employee 31 would work at the time of the injury. An employee who returns 32 to work or is offered work for the same or more money than the 33 employee received when injured shall be compensated only for 34 functional disability, and not in relation to earning capacity. 35 -15- LSB 1691SV (1) 87 av/rj 15/ 20

S.F. 435 If an employee is injured after age 67, compensation shall be 1 paid based on the employee’s resulting loss of earning capacity 2 not to exceed an amount equal to 150 weeks of compensation. 3 New Code section 85.34(2)(w) provides that a determination 4 of the extent of an employee’s loss or permanent impairment 5 for a scheduled injury pursuant to Code section 85.34(2), 6 paragraphs “a” through “t”, or paragraph “u” when determining 7 functional disability and not loss of earning capacity, 8 shall be determined solely by use of the guides to the 9 evaluation of permanent impairment, published by the American 10 medical association, as adopted by the workers’ compensation 11 commissioner by rule pursuant to Code chapter 17A. Lay 12 testimony or agency expertise cannot be utilized in making this 13 determination. 14 New Code section 85.34(2)(x) provides that compensation for 15 permanent partial disability for an injury terminates on the 16 date when compensation for permanent total disability for any 17 injury begins. An employee shall not receive compensation 18 for permanent partial disability if the employee is receiving 19 compensation for permanent total disability. 20 Code section 85.34(3)(a) is amended to provide that 21 an employee can receive compensation for permanent total 22 disability until the employee is no longer permanently and 23 totally disabled or reaches the age of 67, whichever occurs 24 first. If an employee is injured after reaching the age of 25 67, compensation shall be paid so long as the employee remains 26 permanently and totally disabled not exceed an amount equal to 27 150 weeks of compensation. 28 Code section 85.34(3)(b) is amended to provide that if 29 compensation for an injury producing permanent disability has 30 been paid to a person, the amounts so paid are deductible 31 from the total amount of compensation payable to that person 32 for permanent total disability. An employee cannot receive 33 compensation for permanent partial disability if the employee 34 is receiving compensation for permanent total disability. 35 -16- LSB 1691SV (1) 87 av/rj 16/ 20

S.F. 435 New Code section 85.34(3)(c) provides that an employee 1 forfeits the employee’s weekly compensation for a permanent 2 total disability for a week in which the employee is receiving 3 a payment equal to or greater than 50 percent of the statewide 4 average weekly wage from gross earnings from any employer or 5 payment for services from any source. 6 New Code section 85.34(3)(d) provides that an employee is 7 not entitled to compensation for a permanent total disability 8 while the employee is receiving unemployment compensation under 9 Code chapter 96. 10 Code section 85.34(4) is amended to provide that an employer 11 can receive credit for excess payments of temporary total 12 disability, healing period, or temporary partial disability 13 to an employee against the liability of the employer for any 14 future weekly benefits due for an injury to the employee. 15 Code section 85.34(5) is amended to provide that an employer 16 can receive credit for excess payments of any weekly benefits 17 paid to an employee against the liability of the employer for 18 any future weekly benefits for permanent partial disability 19 that is due for any current or subsequent injury to the 20 same employee. Provisions limiting the establishment of an 21 overpayment and the availability of credit are stricken. 22 Code section 85.34(7)(a) relating to compensation of an 23 employee in the case of successive disabilities is amended to 24 provide that an employer is only liable for that portion of an 25 employee’s disability that relates to the injury that serves as 26 the basis for the employee’s claim for workers’ compensation. 27 An employer is not liable for compensating an employee’s 28 preexisting disability that arose out of and in the course of 29 employment with the employer to the extent that the preexisting 30 disability has already been compensated. Code section 31 85.34(7)(b) and (c) relating to compensation of preexisting or 32 combined disabilities and successor employers are stricken. 33 Code section 85.39, relating to medical examinations of 34 injured employees for evaluation of permanent disability, is 35 -17- LSB 1691SV (1) 87 av/rj 17/ 20

S.F. 435 amended to provide that refusal of an employee to submit to an 1 examination requested by the employer forfeits the employee’s 2 right to any compensation for the period of the refusal. 3 Code section 85.39 is also amended to provide that an 4 employer is only liable to reimburse an employee for a medical 5 examination requested by the employee if the injury for which 6 the employee is being examined is found to be compensable under 7 workers’ compensation law. An employer is not liable for the 8 cost of the examination if the injury for which the employee 9 is being examined is determined not to be a compensable 10 injury. An employer is liable to pay a reasonable fee for an 11 examination requested by the employee with reasonableness to 12 be determined based on the typical fee charged by a medical 13 provider to perform an impairment rating in the local area 14 where the examination is conducted. 15 Code section 85.45(1), relating to commutations of future 16 payments of compensation, is amended to require that future 17 payments may be commuted only upon application of a party 18 to the workers’ compensation commissioner and upon written 19 consent of all parties to the proposed commutation or partial 20 commutation. 21 New Code section 85.45(3) provides that the parties to any 22 commutation or partial commutation of future compensation 23 payments agreed to and ordered pursuant to this Code section 24 may also agree that the employee has the right to benefits 25 pursuant to Code section 85.27 under such terms and conditions 26 as agreed to by the parties, for a specified period of time 27 after the commutation or partial commutation agreement has been 28 ordered by the workers’ compensation commissioner. During that 29 specified period of time, the commissioner has jurisdiction 30 of the commutation or partial commutation agreement for 31 the purpose of adjudicating the employee’s entitlement to 32 benefits provided for in Code section 85.27 as provided in the 33 agreement. 34 Code section 85.61(7) is amended to provide that for 35 -18- LSB 1691SV (1) 87 av/rj 18/ 20