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Senate File 451 - IntroducedA Bill ForAn Act 1relating to workers’ compensation.
2BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 85.16, subsection 2, paragraph b, Code
22019, is amended by striking the paragraph.
3 Sec. 2. Section 85.18, Code 2019, is amended to read as
4follows:
585.18 Contract to relieve not operative.
6No contract, rule, or device whatsoever shall operate to
7relieve the employer, in whole or in part, from any liability
8created by this chapter except as herein provided. This
9section does not create a private cause of action.
10 Sec. 3. Section 85.23, Code 2019, is amended to read as
11follows:
1285.23 Notice of injury — failure to give.
13Unless the employer or the employer’s representative shall
14have actual knowledge of the occurrence of an injury received
15within ninety days from the date of the occurrence of the
16injury, or unless the employee or someone on the employee’s
17behalf or a dependent or someone on the dependent’s behalf
18shall give notice thereof to the employer within ninety days
19from the date of the occurrence of the injury, no compensation
20shall be allowed. For the purposes of this section, “date of
21the occurrence of the injury” means the date that the employee
22knew or should have known that the injury was work-related.
23 Sec. 4. Section 85.26, subsection 1, Code 2019, is amended
24to read as follows:
251. An original proceeding for benefits under this chapter
26or chapter 85A, 85B, or 86, shall not be maintained in any
27contested case unless the proceeding is commenced within two
28years from the date of the occurrence of the injury for which
29benefits are claimed or, if weekly compensation benefits are
30paid under section 86.13, within three years from the date of
31the last payment of weekly compensation benefits. For the
32purposes of this section, “date of the occurrence of the injury”
33 means the date that the employee knew or should have known that
34the injury was work-related.
35 Sec. 5. Section 85.33, subsection 3, Code 2019, is amended
-1-1to read as follows:
23. a. If an employee is temporarily, partially disabled and
3the employer for whom the employee was working at the time of
4injury offers to the employee suitable work consistent with the
5employee’s disability the employee shall accept the suitable
6work, and be compensated with temporary partial benefits.
7If the employer offers the employee suitable work and the
8employee refuses to accept the suitable work offered by the
9 with the same employer, the employee shall not be compensated
10with temporary partial, temporary total, or healing period
11benefits during the period of the refusal. Work offered at
12the employer’s principal place of business or established
13place of operation where the employee has previously worked is
14presumed to be geographically suitable for an employee whose
15duties involve travel away from the employer’s principal place
16of business or established place of operation more than fifty
17percent of the time. If suitable work is not offered by the
18employer for whom the employee was working at the time of the
19injury and the employee who is temporarily, partially disabled
20elects to perform work with a different employer, the employee
21shall be compensated with temporary partial benefits.
22b. The employer shall communicate an offer of temporary
23work to the employee in writing, including details of lodging,
24meals, and transportation, and shall communicate to the
25employee that if the employee refuses the offer of temporary
26work, the employee shall communicate the refusal and the reason
27for the refusal to the employer in writing and that during the
28period of the refusal the employee will not be compensated with
29temporary partial, temporary total, or healing period benefits,
30unless the work refused is not suitable. If the employee
31refuses the offer of temporary work on the grounds that the
32work is not suitable, the employee shall communicate the
33refusal, along with the reason for the refusal, to the employer
34in writing at the time the offer of work is refused. Failure to
35communicate the reason for the refusal in this manner precludes
-2-1the employee from raising suitability of the work as the reason
2for the refusal until such time as the reason for the refusal
3is communicated in writing to the employer.
4 Sec. 6. Section 85.34, subsection 2, unnumbered paragraph
51, Code 2019, is amended to read as follows:
6Compensation for permanent partial disability shall begin
7when it is medically indicated that maximum medical improvement
8from the injury has been reached and that the extent of loss or
9percentage of permanent impairment can be determined by use of
10the guides to the evaluation of permanent impairment, published
11by the American medical association, as adopted by the workers’
12compensation commissioner by rule pursuant to chapter 17A at
13the termination of the healing period provided in subsection 1.
14 The compensation shall be in addition to the benefits provided
15by sections 85.27 and 85.28. The compensation shall be based
16upon the extent of the disability and upon the basis of eighty
17percent per week of the employee’s average spendable weekly
18earnings, but not more than a weekly benefit amount, rounded to
19the nearest dollar, equal to one hundred eighty-four percent of
20the statewide average weekly wage paid employees as determined
21by the department of workforce development under section 96.19,
22subsection 36, and in effect at the time of the injury. The
23minimum weekly benefit amount shall be equal to the weekly
24benefit amount of a person whose gross weekly earnings are
25thirty-five percent of the statewide average weekly wage. For
26all cases of permanent partial disability compensation shall
27be paid as follows:
28 Sec. 7. Section 85.34, subsection 2, paragraph n, Code 2019,
29is amended by striking the paragraph.
30 Sec. 8. Section 85.34, subsection 2, paragraph v, Code 2019,
31is amended to read as follows:
32v. In all cases of permanent partial disability other than
33those hereinabove described or referred to in paragraphs “a”
34through “u” hereof, the compensation shall be paid during
35the number of weeks in relation to five hundred weeks as the
-3-1reduction in the employee’s earning capacity caused by the
2disability bears in relation to the earning capacity that the
3employee possessed when the injury occurred. A determination
4of the reduction in the employee’s earning capacity caused
5by the disability shall take into account the permanent
6partial disability of the employee and the number of years in
7the future it was reasonably anticipated that the employee
8would work at the time of the injury. If an employee who
9is eligible for compensation under this paragraph returns to
10work or is offered work for which the employee receives or
11would receive the same or greater salary, wages, or earnings
12than the employee received at the time of the injury, the
13employee shall be compensated based only upon the employee’s
14functional impairment resulting from the injury, and not in
15relation to the employee’s earning capacity. Notwithstanding
16section 85.26, subsection 2, if an employee who is eligible
17for compensation under this paragraph returns to work with the
18same employer and is compensated based only upon the employee’s
19functional impairment resulting from the injury as provided
20in this paragraph and is terminated from employment by that
21employer, the award or agreement for settlement for benefits
22under this chapter shall be reviewed upon commencement of
23reopening proceedings by the employee for a determination of
24any reduction in the employee’s earning capacity caused by the
25employee’s permanent partial disability.
26 Sec. 9. Section 85.34, subsection 2, paragraphs x and y,
27Code 2019, are amended by striking the paragraphs.
28 Sec. 10. Section 85.34, subsection 3, Code 2019, is amended
29to read as follows:
303. Permanent total disability.
31a. Compensation for an injury causing permanent total
32disability shall be upon the basis of eighty percent per week
33of the employee’s average spendable weekly earnings, but not
34more than a weekly benefit amount, rounded to the nearest
35dollar, equal to two hundred percent of the statewide average
-4-1weekly wage paid employees as determined by the department
2of workforce development under section 96.19, subsection 36,
3and in effect at the time of the injury. The minimum weekly
4benefit amount is equal to the weekly benefit amount of a
5person whose gross weekly earnings are thirty-five percent of
6the statewide average weekly wage. The weekly compensation is
7payable until the employee is no longer permanently and totally
8disabled during the period of the employee’s disability.
9b. Such compensation shall be in addition to the benefits
10provided in sections 85.27 and 85.28. No compensation shall
11be payable under this subsection for any injury for which
12compensation is payable under subsection 2 of this section.
13In the event compensation has been paid to any person under
14any provision of this chapter, chapter 85A, or chapter 85B
15for an the same injury producing a permanent disability, any
16such amounts so paid shall be deducted from the total amount
17of compensation payable for permanent total disability. An
18employee shall not receive compensation for permanent partial
19disability if the employee is receiving compensation for
20permanent total disability.
21c. An employee forfeits the employee’s weekly compensation
22for a permanent total disability under this subsection for a
23week in which the employee is receiving a payment equal to or
24greater than fifty percent of the statewide average weekly wage
25from any of the following sources:
26(1) Gross earnings from any employer.
27(2) Payment for current services from any source.
28d. An employee is not entitled to compensation for a
29permanent total disability under this subsection while the
30employee is receiving unemployment compensation under chapter
3196.
32 Sec. 11. Section 85.34, subsections 4, 5, and 7, Code 2019,
33are amended to read as follows:
344. Credits for excess payments. If an employee is paid
35weekly compensation benefits for temporary total disability
-5-1under section 85.33, subsection 1, for a healing period
2under section 85.34, subsection 1, or for temporary partial
3disability under section 85.33, subsection 2, in excess of
4that required by this chapter and chapters 85A, 85B, and 86,
5the excess paid by the employer shall be credited against the
6liability of the employer for any future weekly benefits due
7for an injury to that employee permanent partial disability
8under section 85.34, subsection 2, provided that the employer
9or the employer’s representative has acted in good faith in
10determining and notifying an employee when the temporary total
11disability, healing period, or temporary partial disability
12benefits are terminated.
135. Recovery of employee overpayment. If an employee is paid
14any weekly benefits in excess of that required by this chapter
15and chapters 85A, 85B, and 86, the excess paid by the employer
16shall be credited against the liability of the employer for
17any future weekly benefits due pursuant to subsection 2, for
18any current or a subsequent injury to the same employee. An
19overpayment can be established only when the overpayment is
20recognized in a settlement agreement approved under section
2186.13, pursuant to final agency action in a contested case
22which was commenced within three years from the date that
23weekly benefits were last paid for the claim for which the
24benefits were overpaid, or pursuant to final agency action
25in a contested case for a prior injury to the same employee.
26The credit shall remain available for eight years after the
27date the overpayment was established. If an overpayment
28is established pursuant to this subsection, the employee
29and employer may enter into a written settlement agreement
30providing for the repayment by the employee of the overpayment.
31The agreement is subject to the approval of the workers’
32compensation commissioner. The employer shall not take any
33adverse action against the employee for failing to agree to
34such a written settlement agreement.
357. Successive disabilities.
-6- 1a. An employer is fully liable for compensating only that
2portion all of an employee’s disability that arises out of and
3in the course of the employee’s employment with the employer
4and that relates to the injury that serves as the basis for
5the employee’s claim for compensation under this chapter,
6or chapter 85A, 85B, or 86. An employer is not liable for
7compensating an employee’s preexisting disability that arose
8out of and in the course of employment from a prior injury with
9the employer, to the extent that the employee’s preexisting
10disability has already been compensated under this chapter,
11or chapter 85A, 85B, or 86. An employer is not liable for
12compensating an employee’s preexisting disability that arose
13out of and in the course of employment with a different
14employer or from causes unrelated to employment.
15b. (1) If an injured employee has a preexisting disability
16that was caused by a prior injury arising out of and in
17the course of employment with the same employer, and the
18preexisting disability was compensable under the same paragraph
19of subsection 2 as the employee’s present injury, the employer
20is liable for the combined disability that is caused by the
21injuries, measured in relation to the employee’s condition
22immediately prior to the first injury. In this instance, the
23employer’s liability for the combined disability shall be
24considered to be already partially satisfied to the extent
25of the percentage of disability for which the employee was
26previously compensated by the employer.
27(2) If, however, an employer is liable to an employee for
28a combined disability that is payable under subsection 2,
29paragraph “v”, and the employee has a preexisting disability
30that causes the employee’s earnings to be less at the time of
31the present injury than if the prior injury had not occurred,
32the employer’s liability for the combined disability shall be
33considered to be already partially satisfied to the extent
34of the percentage of disability for which the employee was
35previously compensated by the employer minus the percentage
-7-1that the employee’s earnings are less at the time of the
2present injury than if the prior injury had not occurred.
3c. A successor employer shall be considered to be the
4same employer if the employee became part of the successor
5employer’s workforce through a merger, purchase, or other
6transaction that assumes the employee into the successor
7employer’s workforce without substantially changing the nature
8of the employee’s employment.
9 Sec. 12. Section 85.39, Code 2019, is amended to read as
10follows:
1185.39 Examination of injured employees.
121. After an injury, the employee, if requested by the
13employer, shall submit for examination at some reasonable
14time and place and as often as reasonably requested, to a
15physician or physicians authorized to practice under the laws
16of this state or another state, without cost to the employee;
17but if the employee requests, the employee, at the employee’s
18own cost, is entitled to have a physician or physicians
19of the employee’s own selection present to participate in
20the examination. If an employee is required to leave work
21for which the employee is being paid wages to attend the
22requested examination, the employee shall be compensated at
23the employee’s regular rate for the time the employee is
24required to leave work, and the employee shall be furnished
25transportation to and from the place of examination, or the
26employer may elect to pay the employee the reasonable cost of
27the transportation. The refusal of the employee to submit to
28the examination shall forfeit suspend the employee’s right to
29any compensation for the period of the refusal. Compensation
30shall not be payable for the period of refusal suspension.
312. If an evaluation of permanent disability has been made by
32a physician retained by the employer and the employee believes
33this evaluation to be too low, the employee shall, upon
34application to the commissioner and upon delivery of a copy of
35the application to the employer and its insurance carrier, be
-8-1reimbursed by the employer the reasonable fee for a subsequent
2examination by a physician of the employee’s own choice, and
3reasonably necessary transportation expenses incurred for the
4examination. The physician chosen by the employee has the
5right to confer with and obtain from the employer-retained
6physician sufficient history of the injury to make a proper
7examination. An employer is only liable to reimburse an
8employee for the cost of an examination conducted pursuant to
9this subsection if the injury for which the employee is being
10examined is determined to be compensable under this chapter or
11chapter 85A or 85B. An employer is not liable for the cost of
12such an examination if the injury for which the employee is
13being examined is determined not to be a compensable injury. A
14determination of the reasonableness of a fee for an examination
15made pursuant to this subsection, shall be based on the typical
16fee charged by a medical provider to perform an impairment
17rating in the local area where the examination is conducted.
18 Sec. 13. Section 85.45, subsection 1, unnumbered paragraph
191, Code 2019, is amended to read as follows:
20Future payments of compensation may be commuted to a present
21worth lump sum payment only upon application of a party to
22the commissioner and upon written consent of all parties to
23the proposed commutation or partial commutation, and on the
24following conditions:
25 Sec. 14. Section 85.45, subsection 3, Code 2019, is amended
26by striking the subsection.
27 Sec. 15. Section 85.70, subsection 1, Code 2019, is amended
28to read as follows:
291. An employee who has sustained an injury resulting in
30permanent partial or permanent total disability, for which
31compensation is payable under this chapter other than an
32injury to the shoulder compensable pursuant to section 85.34,
33subsection 2, paragraph “n”, and who cannot return to gainful
34employment because of such disability, shall upon application
35to and approval by the workers’ compensation commissioner
-9-1be entitled to a one hundred dollar weekly payment from the
2employer in addition to any other benefit payments, during each
3full week in which the employee is actively participating in a
4vocational rehabilitation program recognized by the vocational
5rehabilitation services division of the department of
6education. The workers’ compensation commissioner’s approval
7of such application for payment may be given only after a
8careful evaluation of available facts, and after consultation
9with the employer or the employer’s representative.
10Judicial review of the decision of the workers’ compensation
11commissioner may be obtained in accordance with the terms of
12the Iowa administrative procedure Act, chapter 17A, and in
13section 86.26. Such additional benefit payment shall be paid
14for a period not to exceed thirteen consecutive weeks except
15that the workers’ compensation commissioner may extend the
16period of payment not to exceed an additional thirteen weeks if
17the circumstances indicate that a continuation of training will
18in fact accomplish rehabilitation.
19 Sec. 16. Section 85.70, subsection 2, Code 2019, is amended
20by striking the subsection.
21 Sec. 17. Section 85.71, subsection 1, paragraph a, Code
222019, is amended to read as follows:
23a. The employer has a place of business in this state and
24the employee regularly works at or from that place of business,
25or the employer has a place of business in this state and the
26employee is domiciled in this state.
27 Sec. 18. Section 86.26, subsection 2, Code 2019, is amended
28by striking the subsection.
29 Sec. 19. Section 86.39, subsection 2, Code 2019, is amended
30by striking the subsection.
31 Sec. 20. Section 86.42, Code 2019, is amended to read as
32follows:
3386.42 Judgment by district court on award.
34Any party in interest may present a file-stamped copy
35of an order or decision of the commissioner, from which a
-10-1timely petition for judicial review has not been filed or if
2judicial review has been filed, which has not had execution or
3enforcement stayed as provided in section 17A.19, subsection
45, or section 86.26, subsection 2, or an order or decision
5of a deputy commissioner from which a timely appeal has not
6been taken within the agency and which has become final by
7the passage of time as provided by rule and section 17A.15,
8or an agreement for settlement approved by the commissioner,
9and all papers in connection therewith, to the district court
10where judicial review of the agency action may be commenced.
11The court shall render a decree or judgment and cause the
12clerk to notify the parties. The decree or judgment, in the
13absence of a petition for judicial review or if judicial review
14has been commenced, in the absence of a stay of execution
15or enforcement of the decision or order of the workers’
16compensation commissioner as provided in section 17A.19,
17subsection 5, or section 86.26, subsection 2, or in the absence
18of an act of any party which prevents a decision of a deputy
19workers’ compensation commissioner from becoming final, has the
20same effect and in all proceedings in relation thereto is the
21same as though rendered in a suit duly heard and determined by
22the court.
23 Sec. 21. Section 535.3, subsection 1, Code 2019, is amended
24to read as follows:
251. a. Interest shall be allowed on all money due on
26judgments and decrees of courts at a rate calculated according
27to section 668.13, except for interest due pursuant to section
2885.30 for which the rate shall be ten percent per year.
29b. Notwithstanding paragraph “a”, interest due pursuant
30to section 85.30 shall accrue from the date each compensation
31payment is due at an annual rate equal to the one-year treasury
32constant maturity published by the federal reserve in the most
33recent H15 report settled as of the date of injury, plus two
34percent.
35EXPLANATION
-11-1The inclusion of this explanation does not constitute agreement with
2the explanation’s substance by the members of the general assembly.
3This bill relates to workers’ compensation.
4The bill amends Code section 85.16(2)(b), concerning
5intoxication, by striking the paragraph. Current law provides
6that no compensation under Code chapter 85 shall be allowed for
7an injury caused by Code section 85.16(1), which is willful
8injury, or Code section 85.16(2), which is an employee’s
9intoxication. By striking Code section 85.16(2)(b), a
10presumption regarding intoxication is removed. The presumption
11provides that if the employer shows that, at the time of the
12injury or immediately following the injury, the employee had
13positive test results reflecting the presence of alcohol,
14or another narcotic, depressant, stimulant, hallucinogenic,
15or hypnotic drug which drug either was not prescribed by an
16authorized medical practitioner or was not used in accordance
17with the prescribed use of the drug, it shall be presumed that
18the employee was intoxicated at the time of the injury and that
19intoxication was a substantial factor in causing the injury.
20Code section 85.16(2)(b) also provides that once the employer
21has made a showing of presumed intoxication, the burden of
22proof shall be on the employee to overcome the presumption
23by establishing that the employee was not intoxicated at the
24time of the injury, or that intoxication was not a substantial
25factor in causing the injury.
26The bill amends Code section 85.18, concerning the ability
27of a contract to relieve an employer of liability, to eliminate
28a provision which stated that the Code section does not create
29a private cause of action.
30The bill amends Code section 85.23, requiring notice of
31injury, and Code section 85.26(1), concerning limitations of
32actions, to remove definitions of “date of the occurrence of
33the injury” to mean the date the employee knew or should have
34known that the injury was work-related.
35The bill removes a presumption in Code section 85.33(3) that
-12-1work offered at the employer’s principal place of business
2or established place of operation where the employee has
3previously worked is presumed to be geographically suitable
4for an employee whose duties involve travel away from the
5employer’s principal place of business or established place
6of operation more than 50 percent of the time. The bill also
7strikes provisions concerning offers of temporary work and
8what occurs if employees turn down offers of temporary work,
9including the procedures to follow.
10The bill amends Code section 85.34(2), concerning permanent
11partial disabilities, to provide that compensation for
12permanent partial disability shall begin at the termination of
13a healing period provided in Code section 85.34(1), rather than
14when it is medically indicated that maximum medical improvement
15from the injury has been reached and that the extent of loss or
16percentage of permanent impairment can be determined by use of
17the guides to the evaluation of permanent impairment, published
18by the American medical association, as adopted by the workers’
19compensation commissioner by rule pursuant to Code chapter 17A.
20The bill removes a shoulder injury from the scheduled injury
21list for permanent partial disability in Code section 85.34(2)
22by striking paragraph “n”, which states: “For the loss of a
23shoulder, weekly compensation during four hundred weeks”.
24The bill amends Code section 85.34(2)(v), concerning
25compensation for permanent partial disability for
26injuries other than scheduled injuries under Code section
2785.34(2)(a)-(u), to remove a provision that a reduction in the
28employee’s earning capacity caused by a disability must take
29into account the employee’s permanent partial disability and
30the number of years in the future it was reasonably anticipated
31the employee would work at the time of the injury. The bill
32removes a provision that an employee who returns to work or
33is offered work for the same or more money than the employee
34received when injured shall be compensated only for functional
35disability, and not in relation to earning capacity. The
-13-1bill also removes a provision that notwithstands Code section
285.26(2), regarding limitations of actions.
3The bill strikes Code section 85.34(2)(x), concerning
4permanent partial disability. The paragraph provides that in
5all cases of permanent partial disability described in Code
6section 85.34(2)(a)-(u), or Code section 85.34(2)(v), when
7determining functional disability and not loss of earning
8capacity, the extent of loss or percentage of permanent
9impairment shall be determined solely by utilizing the guides
10to the evaluation of permanent impairment, published by the
11American medical association, as adopted by the workers’
12compensation commissioner by rule pursuant to Code chapter 17A.
13 The Code section prohibits lay testimony or agency expertise
14from being utilized in making this determination.
15The bill strikes Code section 85.34(2)(y), concerning
16permanent partial disability. The paragraph provides that
17compensation for permanent partial disability for an injury
18shall terminate on the date when compensation for permanent
19total disability for any injury begins. The Code section
20prohibits an employee from receiving compensation for permanent
21partial disability if the employee is receiving compensation
22for permanent total disability.
23The bill amends Code section 85.34(3)(a), concerning
24permanent total disability, to provide that the weekly
25compensation is payable “during the period of the employee’s
26disability”, rather than “until the employee is no longer
27permanently and totally disabled”.
28The bill amends Code section 85.34(3)(b) to provide that in
29the event compensation has been paid to any person under any
30provision of Code chapter 85, 85A, or 85B for the same injury,
31rather than an injury, producing a permanent disability, any
32such amount so paid shall be deducted from the total amount of
33compensation payable for permanent total disability. The bill
34also amends the paragraph to remove a provision which provided
35that “an employee shall not receive compensation for permanent
-14-1partial disability if the employee is receiving compensation
2for permanent total disability”.
3The bill strikes Code section 85.34(3)(c), which provides
4that an employee forfeits the employee’s weekly compensation
5for a permanent total disability under this subsection for a
6week in which the employee is receiving a payment equal to or
7greater than 50 percent of the statewide average weekly wage
8from any of the following sources: gross earnings from any
9employer or payment for current services from any source.
10The bill strikes Code section 85.34(3)(d), which provides
11that an employee is not entitled to compensation for a
12permanent total disability under Code section 85.34(3) while
13the employee is receiving unemployment compensation under Code
14chapter 96.
15The bill amends Code section 85.34(4), concerning credit for
16excess payments, to provide that the excess payment shall be
17credited against the liability of the employer for permanent
18partial disability under Code section 85.34(2), rather than
19against the liability of the employer for any future weekly
20benefits due for an injury to that employee.
21The bill amends Code section 85.34(5), concerning recovery
22for employee overpayment, by providing that if an employee is
23paid any weekly benefits in excess of that required by Code
24chapter 85, 85A, 85B, or 86, the excess paid by the employer
25shall be credited against the liability of the employer for any
26future weekly benefits due pursuant to Code section 85.34(2),
27for any subsequent, rather than current or subsequent injury,
28to the same employee. Furthermore, the bill provides that
29the overpayment can be established only when the overpayment
30is recognized in a settlement agreement approved under Code
31section 86.13. The bill provides additional detail about the
32settlement agreement process.
33The bill amends Code section 85.34(7), concerning successive
34disabilities, to provide that an employer is fully liable for
35compensating all of an employee’s disability that arises out
-15-1of and in the course of the employee’s employment with the
2employer and removes the requirement that it relate to the
3injury that serves as the basis for the employee’s claim for
4compensation under Code chapter 85, 85A, 85B, or 86. The bill
5also removes a provision that an employer is not liable for
6compensating an employee’s preexisting disability that arose
7out of and in the course of employment from a prior injury with
8the employer, to the extent that the employee’s preexisting
9disability has already been compensated under Code chapter
1085, 85A, 85B, or 86. The bill provides that if an injured
11employee has a preexisting disability that was caused by a
12prior injury arising out of and in the course of employment
13with the same employer, and the preexisting disability was
14compensable under Code section 85.34(2) as the employee’s
15present injury, the employer is liable for the combined
16disability that is caused by the injuries, measured in relation
17to the employee’s condition immediately prior to the first
18injury. In this instance, the employer’s liability for the
19combined disability shall be considered to be already partially
20satisfied to the extent of the percentage of disability for
21which the employee was previously compensated by the employer.
22The bill provides, however, that if an employer is liable to
23an employee for a combined disability that is payable under
24Code section 85.34(2)(v) and the employee has a preexisting
25disability that causes the employee’s earnings to be less at
26the time of the present injury than if the prior injury had not
27occurred, the employer’s liability for the combined disability
28shall be considered to be already partially satisfied to the
29extent of the percentage of disability for which the employee
30was previously compensated by the employer minus the percentage
31that the employee’s earnings are less at the time of the
32present injury than if the prior injury had not occurred.
33Additionally, the bill provides that a successor employer shall
34be considered to be the same employer if the employee became
35part of the successor employer’s workforce through a merger,
-16-1purchase, or other transaction that assumes the employee into
2the successor employer’s workforce without substantially
3changing the nature of the employee’s employment.
4The bill amends Code section 85.39 concerning examination
5of injured employees. The bill provides that if an employee
6refuses to submit to an examination, the employee’s right to
7compensation shall be suspended for the period of refusal,
8rather than forfeited. The bill maintains a similar provision
9in the Code that compensation shall not be payable for the
10period of suspension. The bill eliminates a provision that an
11employer is only liable to reimburse an employee for the cost
12of an examination if the injury for which the employee is being
13examined is determined to be compensable under Code chapter
1485, 85A, or 85B, and an employer is not liable for the cost of
15such an examination if the injury for which the employee is
16being examined is determined not to be a compensable injury.
17The bill also eliminates a provision which provides for the
18reasonableness measure of a medical provider’s fee for an
19impairment rating.
20The bill amends Code section 85.45(1), concerning
21commutation, by removing the requirement that commutation
22of future payments of compensation shall take place only
23upon application by a party to the commissioner and the
24written consent of all parties to the commutation or partial
25commutation.
26The bill strikes Code section 85.45(3), which provides that
27the parties to any commutation or partial commutation of future
28payments agreed to and ordered pursuant to Code section 85.45
29may agree that the employee has the right to benefits pursuant
30to Code section 85.27 for a specified period of time under such
31terms and conditions as agreed to by the workers’ compensation
32commissioner. The stricken Code section also provides that
33during the specified period of time, the commissioner shall
34have jurisdiction of the commutation or partial commutation
35agreement for the purpose of adjudicating the employee’s
-17-1entitlement to benefits provided for in Code section 85.27 as
2provided in the agreement.
3Under current law pursuant to Code section 85.70, an
4employee who has sustained an injury resulting in permanent
5partial or permanent total disability that is compensable under
6Code chapter 85 (other than a shoulder injury compensable
7pursuant to Code section 85.34(2)(n)) and who cannot return
8to gainful employment because of such disability and who
9applies and receives approval from the workers’ compensation
10commissioner shall be entitled to a weekly payment of $100
11in addition to any other weekly benefit payment, during each
12full week that the employee is actively participating in a
13vocational rehabilitation program, which has been recognized
14by the vocational rehabilitation services division of the
15department of education. The bill removes the reference to
16a shoulder injury. The bill strikes a provision relating to
17the vocational training and education program for shoulder
18injuries.
19The bill amends Code section 85.71, concerning compensation
20for injuries that occur outside of the state, to provide that
21the statute is applicable not only if the employer has a place
22of business in this state and the employee regularly works at
23or from that place of business, but also if the employer has a
24place of business in this state and the employee is domiciled
25in this state.
26The bill strikes Code section 86.26(2) which provides that a
27timely petition for judicial review shall stay the execution or
28enforcement of a decision or order of the workers’ compensation
29commissioner if the party seeking judicial review posts a bond
30securing any compensation awarded pursuant to the decision or
31order.
32The bill strikes Code section 86.39(2) which provides that
33an attorney shall not recover fees for legal services based on
34the amount of compensation voluntarily paid or agreed to be
35paid to an employee for temporary or permanent disability under
-18-1Code chapter 85, 85A, 85B, or 86. Also stricken is a provision
2that an attorney shall only recover a fee based on the amount
3of compensation that the attorney demonstrates would not have
4been paid to the employee but for the efforts of the attorney.
5Finally, the bill strikes a provision that any disputes over
6the recovery of attorney fees under this subsection shall be
7resolved by the workers’ compensation commissioner.
8The bill amends Code section 86.42, concerning judgment by
9district court award, to conform to the section of the bill
10which strikes Code section 86.26(2).
11The bill amends Code section 535.3(1)(a), concerning
12interest due on unpaid weekly workers’ compensation payments,
13to provide that interest shall be allowed on all money due on
14judgments and decrees of courts at a rate calculated according
15to Code section 668.13, except for interest due pursuant to
16Code section 85.30 for which the rate shall be 10 percent
17per year. The bill eliminates paragraph “b” of Code section
18535.3(1) which provides that interest due pursuant to Code
19section 85.30 shall accrue from the date each compensation
20payment is due at an annual rate equal to the one-year treasury
21constant maturity published by the federal reserve in the most
22recent H15 report settled as of the date of injury, plus 2
23percent.
-19-asf/rn
2BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 85.16, subsection 2, paragraph b, Code
22019, is amended by striking the paragraph.
3 Sec. 2. Section 85.18, Code 2019, is amended to read as
4follows:
585.18 Contract to relieve not operative.
6No contract, rule, or device whatsoever shall operate to
7relieve the employer, in whole or in part, from any liability
8created by this chapter except as herein provided. This
9section does not create a private cause of action.
10 Sec. 3. Section 85.23, Code 2019, is amended to read as
11follows:
1285.23 Notice of injury — failure to give.
13Unless the employer or the employer’s representative shall
14have actual knowledge of the occurrence of an injury received
15within ninety days from the date of the occurrence of the
16injury, or unless the employee or someone on the employee’s
17behalf or a dependent or someone on the dependent’s behalf
18shall give notice thereof to the employer within ninety days
19from the date of the occurrence of the injury, no compensation
20shall be allowed. For the purposes of this section, “date of
21the occurrence of the injury” means the date that the employee
22knew or should have known that the injury was work-related.
23 Sec. 4. Section 85.26, subsection 1, Code 2019, is amended
24to read as follows:
251. An original proceeding for benefits under this chapter
26or chapter 85A, 85B, or 86, shall not be maintained in any
27contested case unless the proceeding is commenced within two
28years from the date of the occurrence of the injury for which
29benefits are claimed or, if weekly compensation benefits are
30paid under section 86.13, within three years from the date of
31the last payment of weekly compensation benefits. For the
32purposes of this section, “date of the occurrence of the injury”
33 means the date that the employee knew or should have known that
34the injury was work-related.
35 Sec. 5. Section 85.33, subsection 3, Code 2019, is amended
-1-1to read as follows:
23. a. If an employee is temporarily, partially disabled and
3the employer for whom the employee was working at the time of
4injury offers to the employee suitable work consistent with the
5employee’s disability the employee shall accept the suitable
6work, and be compensated with temporary partial benefits.
7If the employer offers the employee suitable work and the
8employee refuses to accept the suitable work offered by the
9 with the same employer, the employee shall not be compensated
10with temporary partial, temporary total, or healing period
11benefits during the period of the refusal. Work offered at
12the employer’s principal place of business or established
13place of operation where the employee has previously worked is
14presumed to be geographically suitable for an employee whose
15duties involve travel away from the employer’s principal place
16of business or established place of operation more than fifty
17percent of the time. If suitable work is not offered by the
18employer for whom the employee was working at the time of the
19injury and the employee who is temporarily, partially disabled
20elects to perform work with a different employer, the employee
21shall be compensated with temporary partial benefits.
22b. The employer shall communicate an offer of temporary
23work to the employee in writing, including details of lodging,
24meals, and transportation, and shall communicate to the
25employee that if the employee refuses the offer of temporary
26work, the employee shall communicate the refusal and the reason
27for the refusal to the employer in writing and that during the
28period of the refusal the employee will not be compensated with
29temporary partial, temporary total, or healing period benefits,
30unless the work refused is not suitable. If the employee
31refuses the offer of temporary work on the grounds that the
32work is not suitable, the employee shall communicate the
33refusal, along with the reason for the refusal, to the employer
34in writing at the time the offer of work is refused. Failure to
35communicate the reason for the refusal in this manner precludes
-2-1the employee from raising suitability of the work as the reason
2for the refusal until such time as the reason for the refusal
3is communicated in writing to the employer.
4 Sec. 6. Section 85.34, subsection 2, unnumbered paragraph
51, Code 2019, is amended to read as follows:
6Compensation for permanent partial disability shall begin
7when it is medically indicated that maximum medical improvement
8from the injury has been reached and that the extent of loss or
9percentage of permanent impairment can be determined by use of
10the guides to the evaluation of permanent impairment, published
11by the American medical association, as adopted by the workers’
12compensation commissioner by rule pursuant to chapter 17A at
13the termination of the healing period provided in subsection 1.
14 The compensation shall be in addition to the benefits provided
15by sections 85.27 and 85.28. The compensation shall be based
16upon the extent of the disability and upon the basis of eighty
17percent per week of the employee’s average spendable weekly
18earnings, but not more than a weekly benefit amount, rounded to
19the nearest dollar, equal to one hundred eighty-four percent of
20the statewide average weekly wage paid employees as determined
21by the department of workforce development under section 96.19,
22subsection 36, and in effect at the time of the injury. The
23minimum weekly benefit amount shall be equal to the weekly
24benefit amount of a person whose gross weekly earnings are
25thirty-five percent of the statewide average weekly wage. For
26all cases of permanent partial disability compensation shall
27be paid as follows:
28 Sec. 7. Section 85.34, subsection 2, paragraph n, Code 2019,
29is amended by striking the paragraph.
30 Sec. 8. Section 85.34, subsection 2, paragraph v, Code 2019,
31is amended to read as follows:
32v. In all cases of permanent partial disability other than
33those hereinabove described or referred to in paragraphs “a”
34through “u” hereof, the compensation shall be paid during
35the number of weeks in relation to five hundred weeks as the
-3-1reduction in the employee’s earning capacity caused by the
2disability bears in relation to the earning capacity that the
3employee possessed when the injury occurred. A determination
4of the reduction in the employee’s earning capacity caused
5by the disability shall take into account the permanent
6partial disability of the employee and the number of years in
7the future it was reasonably anticipated that the employee
8would work at the time of the injury. If an employee who
9is eligible for compensation under this paragraph returns to
10work or is offered work for which the employee receives or
11would receive the same or greater salary, wages, or earnings
12than the employee received at the time of the injury, the
13employee shall be compensated based only upon the employee’s
14functional impairment resulting from the injury, and not in
15relation to the employee’s earning capacity. Notwithstanding
16section 85.26, subsection 2, if an employee who is eligible
17for compensation under this paragraph returns to work with the
18same employer and is compensated based only upon the employee’s
19functional impairment resulting from the injury as provided
20in this paragraph and is terminated from employment by that
21employer, the award or agreement for settlement for benefits
22under this chapter shall be reviewed upon commencement of
23reopening proceedings by the employee for a determination of
24any reduction in the employee’s earning capacity caused by the
25employee’s permanent partial disability.
26 Sec. 9. Section 85.34, subsection 2, paragraphs x and y,
27Code 2019, are amended by striking the paragraphs.
28 Sec. 10. Section 85.34, subsection 3, Code 2019, is amended
29to read as follows:
303. Permanent total disability.
31a. Compensation for an injury causing permanent total
32disability shall be upon the basis of eighty percent per week
33of the employee’s average spendable weekly earnings, but not
34more than a weekly benefit amount, rounded to the nearest
35dollar, equal to two hundred percent of the statewide average
-4-1weekly wage paid employees as determined by the department
2of workforce development under section 96.19, subsection 36,
3and in effect at the time of the injury. The minimum weekly
4benefit amount is equal to the weekly benefit amount of a
5person whose gross weekly earnings are thirty-five percent of
6the statewide average weekly wage. The weekly compensation is
7payable until the employee is no longer permanently and totally
8disabled during the period of the employee’s disability.
9b. Such compensation shall be in addition to the benefits
10provided in sections 85.27 and 85.28. No compensation shall
11be payable under this subsection for any injury for which
12compensation is payable under subsection 2 of this section.
13In the event compensation has been paid to any person under
14any provision of this chapter, chapter 85A, or chapter 85B
15for an the same injury producing a permanent disability, any
16such amounts so paid shall be deducted from the total amount
17of compensation payable for permanent total disability. An
18employee shall not receive compensation for permanent partial
19disability if the employee is receiving compensation for
20permanent total disability.
21c. An employee forfeits the employee’s weekly compensation
22for a permanent total disability under this subsection for a
23week in which the employee is receiving a payment equal to or
24greater than fifty percent of the statewide average weekly wage
25from any of the following sources:
26(1) Gross earnings from any employer.
27(2) Payment for current services from any source.
28d. An employee is not entitled to compensation for a
29permanent total disability under this subsection while the
30employee is receiving unemployment compensation under chapter
3196.
32 Sec. 11. Section 85.34, subsections 4, 5, and 7, Code 2019,
33are amended to read as follows:
344. Credits for excess payments. If an employee is paid
35weekly compensation benefits for temporary total disability
-5-1under section 85.33, subsection 1, for a healing period
2under section 85.34, subsection 1, or for temporary partial
3disability under section 85.33, subsection 2, in excess of
4that required by this chapter and chapters 85A, 85B, and 86,
5the excess paid by the employer shall be credited against the
6liability of the employer for any future weekly benefits due
7for an injury to that employee permanent partial disability
8under section 85.34, subsection 2, provided that the employer
9or the employer’s representative has acted in good faith in
10determining and notifying an employee when the temporary total
11disability, healing period, or temporary partial disability
12benefits are terminated.
135. Recovery of employee overpayment. If an employee is paid
14any weekly benefits in excess of that required by this chapter
15and chapters 85A, 85B, and 86, the excess paid by the employer
16shall be credited against the liability of the employer for
17any future weekly benefits due pursuant to subsection 2, for
18any current or a subsequent injury to the same employee. An
19overpayment can be established only when the overpayment is
20recognized in a settlement agreement approved under section
2186.13, pursuant to final agency action in a contested case
22which was commenced within three years from the date that
23weekly benefits were last paid for the claim for which the
24benefits were overpaid, or pursuant to final agency action
25in a contested case for a prior injury to the same employee.
26The credit shall remain available for eight years after the
27date the overpayment was established. If an overpayment
28is established pursuant to this subsection, the employee
29and employer may enter into a written settlement agreement
30providing for the repayment by the employee of the overpayment.
31The agreement is subject to the approval of the workers’
32compensation commissioner. The employer shall not take any
33adverse action against the employee for failing to agree to
34such a written settlement agreement.
357. Successive disabilities.
-6- 1a. An employer is fully liable for compensating only that
2portion all of an employee’s disability that arises out of and
3in the course of the employee’s employment with the employer
4and that relates to the injury that serves as the basis for
5the employee’s claim for compensation under this chapter,
6or chapter 85A, 85B, or 86. An employer is not liable for
7compensating an employee’s preexisting disability that arose
8out of and in the course of employment from a prior injury with
9the employer, to the extent that the employee’s preexisting
10disability has already been compensated under this chapter,
11or chapter 85A, 85B, or 86. An employer is not liable for
12compensating an employee’s preexisting disability that arose
13out of and in the course of employment with a different
14employer or from causes unrelated to employment.
15b. (1) If an injured employee has a preexisting disability
16that was caused by a prior injury arising out of and in
17the course of employment with the same employer, and the
18preexisting disability was compensable under the same paragraph
19of subsection 2 as the employee’s present injury, the employer
20is liable for the combined disability that is caused by the
21injuries, measured in relation to the employee’s condition
22immediately prior to the first injury. In this instance, the
23employer’s liability for the combined disability shall be
24considered to be already partially satisfied to the extent
25of the percentage of disability for which the employee was
26previously compensated by the employer.
27(2) If, however, an employer is liable to an employee for
28a combined disability that is payable under subsection 2,
29paragraph “v”, and the employee has a preexisting disability
30that causes the employee’s earnings to be less at the time of
31the present injury than if the prior injury had not occurred,
32the employer’s liability for the combined disability shall be
33considered to be already partially satisfied to the extent
34of the percentage of disability for which the employee was
35previously compensated by the employer minus the percentage
-7-1that the employee’s earnings are less at the time of the
2present injury than if the prior injury had not occurred.
3c. A successor employer shall be considered to be the
4same employer if the employee became part of the successor
5employer’s workforce through a merger, purchase, or other
6transaction that assumes the employee into the successor
7employer’s workforce without substantially changing the nature
8of the employee’s employment.
9 Sec. 12. Section 85.39, Code 2019, is amended to read as
10follows:
1185.39 Examination of injured employees.
121. After an injury, the employee, if requested by the
13employer, shall submit for examination at some reasonable
14time and place and as often as reasonably requested, to a
15physician or physicians authorized to practice under the laws
16of this state or another state, without cost to the employee;
17but if the employee requests, the employee, at the employee’s
18own cost, is entitled to have a physician or physicians
19of the employee’s own selection present to participate in
20the examination. If an employee is required to leave work
21for which the employee is being paid wages to attend the
22requested examination, the employee shall be compensated at
23the employee’s regular rate for the time the employee is
24required to leave work, and the employee shall be furnished
25transportation to and from the place of examination, or the
26employer may elect to pay the employee the reasonable cost of
27the transportation. The refusal of the employee to submit to
28the examination shall forfeit suspend the employee’s right to
29any compensation for the period of the refusal. Compensation
30shall not be payable for the period of refusal suspension.
312. If an evaluation of permanent disability has been made by
32a physician retained by the employer and the employee believes
33this evaluation to be too low, the employee shall, upon
34application to the commissioner and upon delivery of a copy of
35the application to the employer and its insurance carrier, be
-8-1reimbursed by the employer the reasonable fee for a subsequent
2examination by a physician of the employee’s own choice, and
3reasonably necessary transportation expenses incurred for the
4examination. The physician chosen by the employee has the
5right to confer with and obtain from the employer-retained
6physician sufficient history of the injury to make a proper
7examination. An employer is only liable to reimburse an
8employee for the cost of an examination conducted pursuant to
9this subsection if the injury for which the employee is being
10examined is determined to be compensable under this chapter or
11chapter 85A or 85B. An employer is not liable for the cost of
12such an examination if the injury for which the employee is
13being examined is determined not to be a compensable injury. A
14determination of the reasonableness of a fee for an examination
15made pursuant to this subsection, shall be based on the typical
16fee charged by a medical provider to perform an impairment
17rating in the local area where the examination is conducted.
18 Sec. 13. Section 85.45, subsection 1, unnumbered paragraph
191, Code 2019, is amended to read as follows:
20Future payments of compensation may be commuted to a present
21worth lump sum payment only upon application of a party to
22the commissioner and upon written consent of all parties to
23the proposed commutation or partial commutation, and on the
24following conditions:
25 Sec. 14. Section 85.45, subsection 3, Code 2019, is amended
26by striking the subsection.
27 Sec. 15. Section 85.70, subsection 1, Code 2019, is amended
28to read as follows:
291. An employee who has sustained an injury resulting in
30permanent partial or permanent total disability, for which
31compensation is payable under this chapter other than an
32injury to the shoulder compensable pursuant to section 85.34,
33subsection 2, paragraph “n”, and who cannot return to gainful
34employment because of such disability, shall upon application
35to and approval by the workers’ compensation commissioner
-9-1be entitled to a one hundred dollar weekly payment from the
2employer in addition to any other benefit payments, during each
3full week in which the employee is actively participating in a
4vocational rehabilitation program recognized by the vocational
5rehabilitation services division of the department of
6education. The workers’ compensation commissioner’s approval
7of such application for payment may be given only after a
8careful evaluation of available facts, and after consultation
9with the employer or the employer’s representative.
10Judicial review of the decision of the workers’ compensation
11commissioner may be obtained in accordance with the terms of
12the Iowa administrative procedure Act, chapter 17A, and in
13section 86.26. Such additional benefit payment shall be paid
14for a period not to exceed thirteen consecutive weeks except
15that the workers’ compensation commissioner may extend the
16period of payment not to exceed an additional thirteen weeks if
17the circumstances indicate that a continuation of training will
18in fact accomplish rehabilitation.
19 Sec. 16. Section 85.70, subsection 2, Code 2019, is amended
20by striking the subsection.
21 Sec. 17. Section 85.71, subsection 1, paragraph a, Code
222019, is amended to read as follows:
23a. The employer has a place of business in this state and
24the employee regularly works at or from that place of business,
25or the employer has a place of business in this state and the
26employee is domiciled in this state.
27 Sec. 18. Section 86.26, subsection 2, Code 2019, is amended
28by striking the subsection.
29 Sec. 19. Section 86.39, subsection 2, Code 2019, is amended
30by striking the subsection.
31 Sec. 20. Section 86.42, Code 2019, is amended to read as
32follows:
3386.42 Judgment by district court on award.
34Any party in interest may present a file-stamped copy
35of an order or decision of the commissioner, from which a
-10-1timely petition for judicial review has not been filed or if
2judicial review has been filed, which has not had execution or
3enforcement stayed as provided in section 17A.19, subsection
45, or section 86.26, subsection 2, or an order or decision
5of a deputy commissioner from which a timely appeal has not
6been taken within the agency and which has become final by
7the passage of time as provided by rule and section 17A.15,
8or an agreement for settlement approved by the commissioner,
9and all papers in connection therewith, to the district court
10where judicial review of the agency action may be commenced.
11The court shall render a decree or judgment and cause the
12clerk to notify the parties. The decree or judgment, in the
13absence of a petition for judicial review or if judicial review
14has been commenced, in the absence of a stay of execution
15or enforcement of the decision or order of the workers’
16compensation commissioner as provided in section 17A.19,
17subsection 5, or section 86.26, subsection 2, or in the absence
18of an act of any party which prevents a decision of a deputy
19workers’ compensation commissioner from becoming final, has the
20same effect and in all proceedings in relation thereto is the
21same as though rendered in a suit duly heard and determined by
22the court.
23 Sec. 21. Section 535.3, subsection 1, Code 2019, is amended
24to read as follows:
251. a. Interest shall be allowed on all money due on
26judgments and decrees of courts at a rate calculated according
27to section 668.13, except for interest due pursuant to section
2885.30 for which the rate shall be ten percent per year.
29b. Notwithstanding paragraph “a”, interest due pursuant
30to section 85.30 shall accrue from the date each compensation
31payment is due at an annual rate equal to the one-year treasury
32constant maturity published by the federal reserve in the most
33recent H15 report settled as of the date of injury, plus two
34percent.
35EXPLANATION
-11-1The inclusion of this explanation does not constitute agreement with
2the explanation’s substance by the members of the general assembly.
3This bill relates to workers’ compensation.
4The bill amends Code section 85.16(2)(b), concerning
5intoxication, by striking the paragraph. Current law provides
6that no compensation under Code chapter 85 shall be allowed for
7an injury caused by Code section 85.16(1), which is willful
8injury, or Code section 85.16(2), which is an employee’s
9intoxication. By striking Code section 85.16(2)(b), a
10presumption regarding intoxication is removed. The presumption
11provides that if the employer shows that, at the time of the
12injury or immediately following the injury, the employee had
13positive test results reflecting the presence of alcohol,
14or another narcotic, depressant, stimulant, hallucinogenic,
15or hypnotic drug which drug either was not prescribed by an
16authorized medical practitioner or was not used in accordance
17with the prescribed use of the drug, it shall be presumed that
18the employee was intoxicated at the time of the injury and that
19intoxication was a substantial factor in causing the injury.
20Code section 85.16(2)(b) also provides that once the employer
21has made a showing of presumed intoxication, the burden of
22proof shall be on the employee to overcome the presumption
23by establishing that the employee was not intoxicated at the
24time of the injury, or that intoxication was not a substantial
25factor in causing the injury.
26The bill amends Code section 85.18, concerning the ability
27of a contract to relieve an employer of liability, to eliminate
28a provision which stated that the Code section does not create
29a private cause of action.
30The bill amends Code section 85.23, requiring notice of
31injury, and Code section 85.26(1), concerning limitations of
32actions, to remove definitions of “date of the occurrence of
33the injury” to mean the date the employee knew or should have
34known that the injury was work-related.
35The bill removes a presumption in Code section 85.33(3) that
-12-1work offered at the employer’s principal place of business
2or established place of operation where the employee has
3previously worked is presumed to be geographically suitable
4for an employee whose duties involve travel away from the
5employer’s principal place of business or established place
6of operation more than 50 percent of the time. The bill also
7strikes provisions concerning offers of temporary work and
8what occurs if employees turn down offers of temporary work,
9including the procedures to follow.
10The bill amends Code section 85.34(2), concerning permanent
11partial disabilities, to provide that compensation for
12permanent partial disability shall begin at the termination of
13a healing period provided in Code section 85.34(1), rather than
14when it is medically indicated that maximum medical improvement
15from the injury has been reached and that the extent of loss or
16percentage of permanent impairment can be determined by use of
17the guides to the evaluation of permanent impairment, published
18by the American medical association, as adopted by the workers’
19compensation commissioner by rule pursuant to Code chapter 17A.
20The bill removes a shoulder injury from the scheduled injury
21list for permanent partial disability in Code section 85.34(2)
22by striking paragraph “n”, which states: “For the loss of a
23shoulder, weekly compensation during four hundred weeks”.
24The bill amends Code section 85.34(2)(v), concerning
25compensation for permanent partial disability for
26injuries other than scheduled injuries under Code section
2785.34(2)(a)-(u), to remove a provision that a reduction in the
28employee’s earning capacity caused by a disability must take
29into account the employee’s permanent partial disability and
30the number of years in the future it was reasonably anticipated
31the employee would work at the time of the injury. The bill
32removes a provision that an employee who returns to work or
33is offered work for the same or more money than the employee
34received when injured shall be compensated only for functional
35disability, and not in relation to earning capacity. The
-13-1bill also removes a provision that notwithstands Code section
285.26(2), regarding limitations of actions.
3The bill strikes Code section 85.34(2)(x), concerning
4permanent partial disability. The paragraph provides that in
5all cases of permanent partial disability described in Code
6section 85.34(2)(a)-(u), or Code section 85.34(2)(v), when
7determining functional disability and not loss of earning
8capacity, the extent of loss or percentage of permanent
9impairment shall be determined solely by utilizing the guides
10to the evaluation of permanent impairment, published by the
11American medical association, as adopted by the workers’
12compensation commissioner by rule pursuant to Code chapter 17A.
13 The Code section prohibits lay testimony or agency expertise
14from being utilized in making this determination.
15The bill strikes Code section 85.34(2)(y), concerning
16permanent partial disability. The paragraph provides that
17compensation for permanent partial disability for an injury
18shall terminate on the date when compensation for permanent
19total disability for any injury begins. The Code section
20prohibits an employee from receiving compensation for permanent
21partial disability if the employee is receiving compensation
22for permanent total disability.
23The bill amends Code section 85.34(3)(a), concerning
24permanent total disability, to provide that the weekly
25compensation is payable “during the period of the employee’s
26disability”, rather than “until the employee is no longer
27permanently and totally disabled”.
28The bill amends Code section 85.34(3)(b) to provide that in
29the event compensation has been paid to any person under any
30provision of Code chapter 85, 85A, or 85B for the same injury,
31rather than an injury, producing a permanent disability, any
32such amount so paid shall be deducted from the total amount of
33compensation payable for permanent total disability. The bill
34also amends the paragraph to remove a provision which provided
35that “an employee shall not receive compensation for permanent
-14-1partial disability if the employee is receiving compensation
2for permanent total disability”.
3The bill strikes Code section 85.34(3)(c), which provides
4that an employee forfeits the employee’s weekly compensation
5for a permanent total disability under this subsection for a
6week in which the employee is receiving a payment equal to or
7greater than 50 percent of the statewide average weekly wage
8from any of the following sources: gross earnings from any
9employer or payment for current services from any source.
10The bill strikes Code section 85.34(3)(d), which provides
11that an employee is not entitled to compensation for a
12permanent total disability under Code section 85.34(3) while
13the employee is receiving unemployment compensation under Code
14chapter 96.
15The bill amends Code section 85.34(4), concerning credit for
16excess payments, to provide that the excess payment shall be
17credited against the liability of the employer for permanent
18partial disability under Code section 85.34(2), rather than
19against the liability of the employer for any future weekly
20benefits due for an injury to that employee.
21The bill amends Code section 85.34(5), concerning recovery
22for employee overpayment, by providing that if an employee is
23paid any weekly benefits in excess of that required by Code
24chapter 85, 85A, 85B, or 86, the excess paid by the employer
25shall be credited against the liability of the employer for any
26future weekly benefits due pursuant to Code section 85.34(2),
27for any subsequent, rather than current or subsequent injury,
28to the same employee. Furthermore, the bill provides that
29the overpayment can be established only when the overpayment
30is recognized in a settlement agreement approved under Code
31section 86.13. The bill provides additional detail about the
32settlement agreement process.
33The bill amends Code section 85.34(7), concerning successive
34disabilities, to provide that an employer is fully liable for
35compensating all of an employee’s disability that arises out
-15-1of and in the course of the employee’s employment with the
2employer and removes the requirement that it relate to the
3injury that serves as the basis for the employee’s claim for
4compensation under Code chapter 85, 85A, 85B, or 86. The bill
5also removes a provision that an employer is not liable for
6compensating an employee’s preexisting disability that arose
7out of and in the course of employment from a prior injury with
8the employer, to the extent that the employee’s preexisting
9disability has already been compensated under Code chapter
1085, 85A, 85B, or 86. The bill provides that if an injured
11employee has a preexisting disability that was caused by a
12prior injury arising out of and in the course of employment
13with the same employer, and the preexisting disability was
14compensable under Code section 85.34(2) as the employee’s
15present injury, the employer is liable for the combined
16disability that is caused by the injuries, measured in relation
17to the employee’s condition immediately prior to the first
18injury. In this instance, the employer’s liability for the
19combined disability shall be considered to be already partially
20satisfied to the extent of the percentage of disability for
21which the employee was previously compensated by the employer.
22The bill provides, however, that if an employer is liable to
23an employee for a combined disability that is payable under
24Code section 85.34(2)(v) and the employee has a preexisting
25disability that causes the employee’s earnings to be less at
26the time of the present injury than if the prior injury had not
27occurred, the employer’s liability for the combined disability
28shall be considered to be already partially satisfied to the
29extent of the percentage of disability for which the employee
30was previously compensated by the employer minus the percentage
31that the employee’s earnings are less at the time of the
32present injury than if the prior injury had not occurred.
33Additionally, the bill provides that a successor employer shall
34be considered to be the same employer if the employee became
35part of the successor employer’s workforce through a merger,
-16-1purchase, or other transaction that assumes the employee into
2the successor employer’s workforce without substantially
3changing the nature of the employee’s employment.
4The bill amends Code section 85.39 concerning examination
5of injured employees. The bill provides that if an employee
6refuses to submit to an examination, the employee’s right to
7compensation shall be suspended for the period of refusal,
8rather than forfeited. The bill maintains a similar provision
9in the Code that compensation shall not be payable for the
10period of suspension. The bill eliminates a provision that an
11employer is only liable to reimburse an employee for the cost
12of an examination if the injury for which the employee is being
13examined is determined to be compensable under Code chapter
1485, 85A, or 85B, and an employer is not liable for the cost of
15such an examination if the injury for which the employee is
16being examined is determined not to be a compensable injury.
17The bill also eliminates a provision which provides for the
18reasonableness measure of a medical provider’s fee for an
19impairment rating.
20The bill amends Code section 85.45(1), concerning
21commutation, by removing the requirement that commutation
22of future payments of compensation shall take place only
23upon application by a party to the commissioner and the
24written consent of all parties to the commutation or partial
25commutation.
26The bill strikes Code section 85.45(3), which provides that
27the parties to any commutation or partial commutation of future
28payments agreed to and ordered pursuant to Code section 85.45
29may agree that the employee has the right to benefits pursuant
30to Code section 85.27 for a specified period of time under such
31terms and conditions as agreed to by the workers’ compensation
32commissioner. The stricken Code section also provides that
33during the specified period of time, the commissioner shall
34have jurisdiction of the commutation or partial commutation
35agreement for the purpose of adjudicating the employee’s
-17-1entitlement to benefits provided for in Code section 85.27 as
2provided in the agreement.
3Under current law pursuant to Code section 85.70, an
4employee who has sustained an injury resulting in permanent
5partial or permanent total disability that is compensable under
6Code chapter 85 (other than a shoulder injury compensable
7pursuant to Code section 85.34(2)(n)) and who cannot return
8to gainful employment because of such disability and who
9applies and receives approval from the workers’ compensation
10commissioner shall be entitled to a weekly payment of $100
11in addition to any other weekly benefit payment, during each
12full week that the employee is actively participating in a
13vocational rehabilitation program, which has been recognized
14by the vocational rehabilitation services division of the
15department of education. The bill removes the reference to
16a shoulder injury. The bill strikes a provision relating to
17the vocational training and education program for shoulder
18injuries.
19The bill amends Code section 85.71, concerning compensation
20for injuries that occur outside of the state, to provide that
21the statute is applicable not only if the employer has a place
22of business in this state and the employee regularly works at
23or from that place of business, but also if the employer has a
24place of business in this state and the employee is domiciled
25in this state.
26The bill strikes Code section 86.26(2) which provides that a
27timely petition for judicial review shall stay the execution or
28enforcement of a decision or order of the workers’ compensation
29commissioner if the party seeking judicial review posts a bond
30securing any compensation awarded pursuant to the decision or
31order.
32The bill strikes Code section 86.39(2) which provides that
33an attorney shall not recover fees for legal services based on
34the amount of compensation voluntarily paid or agreed to be
35paid to an employee for temporary or permanent disability under
-18-1Code chapter 85, 85A, 85B, or 86. Also stricken is a provision
2that an attorney shall only recover a fee based on the amount
3of compensation that the attorney demonstrates would not have
4been paid to the employee but for the efforts of the attorney.
5Finally, the bill strikes a provision that any disputes over
6the recovery of attorney fees under this subsection shall be
7resolved by the workers’ compensation commissioner.
8The bill amends Code section 86.42, concerning judgment by
9district court award, to conform to the section of the bill
10which strikes Code section 86.26(2).
11The bill amends Code section 535.3(1)(a), concerning
12interest due on unpaid weekly workers’ compensation payments,
13to provide that interest shall be allowed on all money due on
14judgments and decrees of courts at a rate calculated according
15to Code section 668.13, except for interest due pursuant to
16Code section 85.30 for which the rate shall be 10 percent
17per year. The bill eliminates paragraph “b” of Code section
18535.3(1) which provides that interest due pursuant to Code
19section 85.30 shall accrue from the date each compensation
20payment is due at an annual rate equal to the one-year treasury
21constant maturity published by the federal reserve in the most
22recent H15 report settled as of the date of injury, plus 2
23percent.
-19-asf/rn