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House Study Bill 169 - IntroducedA Bill ForAn Act 1relating to workers’ compensation and including
2effective date and applicability provisions.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 85.16, subsection 2, Code 2017, is
2amended to read as follows:
32. a. By the employee’s intoxication, which did not arise
4out of and in the course of employment but which was due
5to the effects of alcohol or another narcotic, depressant,
6stimulant, hallucinogenic, or hypnotic drug not prescribed by
7an authorized medical practitioner, if the intoxication was a
8substantial factor in causing the injury.
9b. For the purpose of disallowing compensation under this
10subsection, both of the following apply:
11(1) If the employer shows that, at the time of the injury
12or immediately following the injury, the employee had positive
13test results reflecting the presence of alcohol, or another
14narcotic, depressant, stimulant, hallucinogenic, or hypnotic
15drug which drug either was not prescribed by an authorized
16medical practitioner or was not used in accordance with the
17prescribed use of the drug, it shall be presumed that the
18employee was intoxicated at the time of the injury and that
19intoxication was the predominant factor in causing the injury.
20(2) Once the employer has made a showing as provided
21in subparagraph (1), the burden of proof shall be on the
22employee to overcome the presumption by establishing that the
23employee was not intoxicated at the time of the injury, or that
24intoxication was not the predominant factor in causing the
25injury.
26 Sec. 2. Section 85.18, Code 2017, is amended to read as
27follows:
2885.18 Contract to relieve not operative.
29No contract, rule, or device whatsoever shall operate to
30relieve the employer, in whole or in part, from any liability
31created by this chapter except as herein provided. This
32section does not create a private cause of action.
33 Sec. 3. Section 85.23, Code 2017, is amended to read as
34follows:
3585.23 Notice of injury — failure to give.
-1- 1Unless the employer or the employer’s representative shall
2have actual knowledge of the occurrence of an injury received
3within ninety days from the date of the occurrence of the
4injury, or unless the employee or someone on the employee’s
5behalf or a dependent or someone on the dependent’s behalf
6shall give notice thereof to the employer within ninety days
7from the date of the occurrence of the injury, no compensation
8shall be allowed. For the purposes of this section, “date of
9the occurrence of the injury” means the date that the employee
10knew or should have known that the injury was work-related.
11 Sec. 4. Section 85.26, subsection 1, Code 2017, is amended
12to read as follows:
131. An original proceeding for benefits under this chapter
14or chapter 85A, 85B, or 86, shall not be maintained in any
15contested case unless the proceeding is commenced within two
16years from the date of the occurrence of the injury for which
17benefits are claimed or, if weekly compensation benefits are
18paid under section 86.13, within three years from the date of
19the last payment of weekly compensation benefits. For the
20purposes of this section, “date of the occurrence of the injury”
21 means the date that the employee knew or should have known that
22the injury was work-related.
23 Sec. 5. Section 85.33, subsection 3, Code 2017, is amended
24to read as follows:
253. a. If an employee is temporarily, partially disabled
26and the employer for whom the employee was working at the time
27of injury offers to the employee suitable work consistent
28with the employee’s disability the employee shall accept the
29suitable work, and be compensated with temporary partial
30benefits. If the employer offers the employee suitable work
31and the employee refuses to accept the suitable work with
32the same offered by the employer, the employee shall not be
33compensated with temporary partial, temporary total, or healing
34period benefits during the period of the refusal. Work offered
35at the employer’s principal place of business or established
-2-1place of operation where the employee has previously worked is
2presumed to be geographically suitable for an employee whose
3duties involve travel away from the employer’s principal place
4of business or established place of operation more than fifty
5percent of the time. If suitable work is not offered by the
6employer for whom the employee was working at the time of the
7injury and the employee who is temporarily partially disabled
8elects to perform work with a different employer, the employee
9shall be compensated with temporary partial benefits.
10b. The employer shall communicate an offer of temporary
11work to the employee in writing, including details of lodging,
12meals, and transportation, and shall communicate to the
13employee that if the employee refuses the offer of temporary
14work, the employee shall communicate the refusal and the reason
15for the refusal to the employer in writing and that during the
16period of the refusal the employee will not be compensated with
17temporary partial, temporary total, or healing period benefits,
18unless the work refused is not suitable. If the employee
19refuses the offer of temporary work on the grounds that the
20work is not suitable, the employee shall communicate the
21refusal, along with the reason for the refusal, to the employer
22in writing at the time the offer of work is refused. Failure to
23communicate the reason for the refusal in this manner precludes
24the employee from raising suitability of the work as the reason
25for the refusal until such time as the reason for the refusal
26is communicated in writing to the employer.
27 Sec. 6. Section 85.34, subsection 2, unnumbered paragraph
281, Code 2017, is amended to read as follows:
29Compensation for permanent partial disability shall begin at
30the termination of the healing period provided in subsection 1
31 when it is medically indicated that maximum medical improvement
32from the injury has been reached and that the extent of loss or
33percentage of permanent impairment can be determined by use of
34the guides to the evaluation of permanent impairment, published
35by the American medical association, as adopted by the workers’
-3-1compensation commissioner by rule pursuant to chapter 17A. The
2compensation shall be in addition to the benefits provided by
3sections 85.27 and 85.28. The compensation shall be based
4upon the extent of the disability and upon the basis of eighty
5percent per week of the employee’s average spendable weekly
6earnings, but not more than a weekly benefit amount, rounded to
7the nearest dollar, equal to one hundred eighty-four percent of
8the statewide average weekly wage paid employees as determined
9by the department of workforce development under section 96.19,
10subsection 36, and in effect at the time of the injury. The
11minimum weekly benefit amount shall be equal to the weekly
12benefit amount of a person whose gross weekly earnings are
13thirty-five percent of the statewide average weekly wage. For
14all cases of permanent partial disability compensation shall
15be paid as follows:
16 Sec. 7. Section 85.34, subsection 2, paragraphs m and u,
17Code 2017, are amended to read as follows:
18m. The loss of two-thirds of that part of an arm between
19 including the shoulder joint and to the elbow joint shall equal
20the loss of an arm and the compensation therefor shall be
21weekly compensation during two hundred fifty weeks.
22u. In all cases of permanent partial disability other than
23those hereinabove described or referred to in paragraphs “a”
24through “t” hereof, the compensation shall be paid during
25the number of weeks in relation to five hundred weeks as the
26reduction in the employee’s earning capacity caused by the
27disability bears in relation to the earning capacity that the
28employee possessed when the injury occurred. A determination
29of the reduction in the employee’s earning capacity caused
30by the disability shall take into account the permanent
31partial disability of the employee and the number of years in
32the future it was reasonably anticipated that the employee
33would work at the time of the injury. If an employee who is
34eligible for compensation under this paragraph returns to work
35or is offered work for which the employee receives or would
-4-1receive the same or greater salary, wages, or earnings than
2the employee received at the time of the injury, the employee
3shall be compensated based only upon the employee’s functional
4disability resulting from the injury, and not in relation to
5the employee’s earning capacity. If an employee sustains an
6injury compensable under this paragraph after reaching the age
7of sixty-seven, compensation shall be paid to the employee
8based on the employee’s resulting loss of earning capacity
9not to exceed an amount equal to one hundred fifty weeks of
10compensation.
11 Sec. 8. Section 85.34, subsection 2, Code 2017, is amended
12by adding the following new paragraphs:
13 NEW PARAGRAPH. w. In all cases of permanent partial
14disability described in paragraphs “a” through “t”, or paragraph
15“u” when determining functional disability and not loss of
16earning capacity, the extent of loss or percentage of permanent
17impairment shall be determined solely by utilizing the guides
18to the evaluation of permanent impairment, published by the
19American medical association, as adopted by the workers’
20compensation commissioner by rule pursuant to chapter 17A.
21 Lay testimony or agency expertise shall not be utilized in
22determining loss or percentage of permanent impairment pursuant
23to paragraphs “a” through “t”, or paragraph “u” when determining
24functional disability and not loss of earning capacity.
25 NEW PARAGRAPH. x. Compensation for permanent partial
26disability for an injury shall terminate on the date when
27compensation for permanent total disability for any injury
28begins. An employee shall not receive compensation for
29permanent partial disability if the employee is receiving
30compensation for permanent total disability.
31 Sec. 9. Section 85.34, subsection 3, Code 2017, is amended
32to read as follows:
333. Permanent total disability.
34a. Compensation for an injury causing permanent total
35disability shall be upon the basis of eighty percent per week
-5-1of the employee’s average spendable weekly earnings, but not
2more than a weekly benefit amount, rounded to the nearest
3dollar, equal to two hundred percent of the statewide average
4weekly wage paid employees as determined by the department
5of workforce development under section 96.19, subsection 36,
6and in effect at the time of the injury. The minimum weekly
7benefit amount is equal to the weekly benefit amount of a
8person whose gross weekly earnings are thirty-five percent of
9the statewide average weekly wage. The weekly compensation is
10payable during the period of the employee’s disability until
11the employee is no longer permanently and totally disabled or
12until the employee reaches the age of sixty-seven, whichever
13occurs first. If an employee sustains an injury compensable
14under this subsection after reaching the age of sixty-seven,
15compensation shall be paid to the employee so long as the
16employee remains permanently and totally disabled not to exceed
17an amount equal to one hundred fifty weeks of compensation.
18b. Such compensation shall be in addition to the benefits
19provided in sections 85.27 and 85.28. No compensation shall
20be payable under this subsection for any injury for which
21compensation is payable under subsection 2 of this section.
22In the event compensation has been paid to any person under
23any provision of this chapter, chapter 85A or chapter 85B for
24the same an injury producing a total permanent disability, any
25such amounts so paid shall be deducted from the total amount
26of compensation payable for such permanent total disability.
27An employee shall not receive compensation for permanent
28partial disability if the employee is receiving compensation
29for permanent total disability.
30 Sec. 10. Section 85.34, subsection 3, Code 2017, is amended
31by adding the following new paragraphs:
32 NEW PARAGRAPH. c. An employee forfeits the employee’s
33weekly compensation for a permanent total disability under this
34subsection for a week in which the employee is receiving a
35payment equal to or greater than fifty percent of the statewide
-6-1average weekly wage from any of the following sources:
2(1) Gross earnings from any employer.
3(2) Payment for services from any source.
4 NEW PARAGRAPH. d. An employee is not entitled to
5compensation for a permanent total disability under this
6subsection while the employee is receiving unemployment
7compensation under chapter 96.
8 Sec. 11. Section 85.34, subsections 4 and 5, Code 2017, are
9amended to read as follows:
104. Credits for excess payments. If an employee is paid
11weekly compensation benefits for temporary total disability
12under section 85.33, subsection 1, for a healing period
13under section 85.34, subsection 1, or for temporary partial
14disability under section 85.33, subsection 2, in excess of
15that required by this chapter and chapters 85A, 85B, and 86,
16the excess paid by the employer shall be credited against the
17liability of the employer for permanent partial disability
18under section 85.34, subsection 2 any future weekly benefits
19due for an injury to that employee, provided that the employer
20or the employer’s representative has acted in good faith in
21determining and notifying an employee when the temporary total
22disability, healing period, or temporary partial disability
23benefits are terminated.
245. Recovery of employee overpayment. If an employee is paid
25any weekly benefits in excess of that required by this chapter
26and chapters 85A, 85B, and 86, the excess paid by the employer
27shall be credited against the liability of the employer for
28any future weekly benefits due pursuant to subsection 2, for
29a any current or subsequent injury to the same employee. An
30overpayment can be established only when the overpayment is
31recognized in a settlement agreement approved under section
3286.13, pursuant to final agency action in a contested case
33which was commenced within three years from the date that
34weekly benefits were last paid for the claim for which the
35benefits were overpaid, or pursuant to final agency action
-7-1in a contested case for a prior injury to the same employee.
2The credit shall remain available for eight years after the
3date the overpayment was established. If an overpayment
4is established pursuant to this subsection, the employee
5and employer may enter into a written settlement agreement
6providing for the repayment by the employee of the overpayment.
7The agreement is subject to the approval of the workers’
8compensation commissioner. The employer shall not take any
9adverse action against the employee for failing to agree to
10such a written settlement agreement.
11 Sec. 12. Section 85.34, subsection 7, paragraph a, Code
122017, is amended to read as follows:
13a. An employer is fully liable for compensating all only
14that portion of an employee’s disability that arises out of and
15in the course of the employee’s employment with the employer
16and that relates to the injury that serves as the basis for
17the employee’s claim for compensation under this chapter,
18or chapter 85A, 85B, or 86. An employer is not liable for
19compensating an employee’s preexisting disability that arose
20out of and in the course of employment from a prior injury with
21the employer, to the extent that the employee’s preexisting
22disability has already been compensated under this chapter,
23or chapter 85A, 85B, or 86. An employer is not liable for
24compensating an employee’s preexisting disability that arose
25out of and in the course of employment with a different
26employer or from causes unrelated to employment.
27 Sec. 13. Section 85.34, subsection 7, paragraphs b and c,
28Code 2017, are amended by striking the paragraphs.
29 Sec. 14. Section 85.39, Code 2017, is amended to read as
30follows:
3185.39 Examination of injured employees.
321. After an injury, the employee, if requested by the
33employer, shall submit for examination at some reasonable
34time and place and as often as reasonably requested, to a
35physician or physicians authorized to practice under the laws
-8-1of this state or another state, without cost to the employee;
2but if the employee requests, the employee, at the employee’s
3own cost, is entitled to have a physician or physicians
4of the employee’s own selection present to participate in
5the examination. If an employee is required to leave work
6for which the employee is being paid wages to attend the
7requested examination, the employee shall be compensated at
8the employee’s regular rate for the time the employee is
9required to leave work, and the employee shall be furnished
10transportation to and from the place of examination, or the
11employer may elect to pay the employee the reasonable cost of
12the transportation. The refusal of the employee to submit to
13the examination shall suspend forfeit the employee’s right to
14any compensation for the period of the refusal. Compensation
15shall not be payable for the period of suspension refusal.
162. If an evaluation of permanent disability has been made by
17a physician retained by the employer and the employee believes
18this evaluation to be too low, the employee shall, upon
19application to the commissioner and upon delivery of a copy of
20the application to the employer and its insurance carrier, be
21reimbursed by the employer the reasonable fee for a subsequent
22examination by a physician of the employee’s own choice, and
23reasonably necessary transportation expenses incurred for the
24examination. The physician chosen by the employee has the
25right to confer with and obtain from the employer-retained
26physician sufficient history of the injury to make a proper
27examination. An employer is only liable to reimburse an
28employee for the cost of an examination conducted pursuant to
29this subsection if the injury for which the employee is being
30examined is determined to be compensable under this chapter or
31chapter 85A or 85B. An employer is not liable for the cost of
32such an examination if the injury for which the employee is
33being examined is determined not to be a compensable injury. A
34determination of the reasonableness of a fee for an examination
35made pursuant to this subsection, shall be based on the typical
-9-1fee charged by a medical provider to perform an impairment
2rating in the local area where the examination is conducted.
3 Sec. 15. Section 85.45, subsection 1, unnumbered paragraph
41, Code 2017, is amended to read as follows:
5Future payments of compensation may be commuted to a present
6worth lump sum payment only upon application of a party to
7the commissioner and upon written consent of all parties to
8the proposed commutation or partial commutation, and on the
9following conditions:
10 Sec. 16. Section 85.45, Code 2017, is amended by adding the
11following new subsection:
12 NEW SUBSECTION. 3. The parties to any commutation or
13partial commutation of future payments agreed to and ordered
14pursuant to this section may agree that the employee has the
15right to benefits pursuant to section 85.27 under such terms
16and conditions as agreed to by the parties, for a specified
17period of time after the commutation or partial commutation
18agreement has been ordered by the workers’ compensation
19commissioner. During that specified period of time, the
20commissioner shall have jurisdiction of the commutation or
21partial commutation agreement for the purpose of adjudicating
22the employee’s entitlement to benefits provided for in section
2385.27 as provided in the agreement.
24 Sec. 17. Section 85.61, subsection 7, unnumbered paragraph
251, Code 2017, is amended to read as follows:
26The words “personal injury arising out of and in the course
27of the employment” shall include injuries to employees whose
28services are being performed on, in, or about the premises
29which are occupied, used, or controlled by the employer, and
30also injuries to those who are engaged elsewhere in places
31where their employer’s business requires their presence and
32subjects them to dangers incident to the business but only
33if such injuries are found to be the predominant factor in
34causing the disability for which compensation is claimed under
35this chapter, or chapter 85A or 85B. For purposes of this
-10-1subsection, an injury is the predominant factor in causing a
2disability if more than fifty percent of the disability is
3attributable to the injury.
4 Sec. 18. Section 85.71, subsection 1, paragraph a, Code
52017, is amended to read as follows:
6a. The employer has a place of business in this state and
7the employee regularly works at or from that place of business,
8or the employer has a place of business in this state and the
9employee is domiciled in this state.
10 Sec. 19. Section 86.26, Code 2017, is amended to read as
11follows:
1286.26 Judicial review.
131. Judicial review of decisions or orders of the workers’
14compensation commissioner may be sought in accordance
15with chapter 17A. Notwithstanding chapter 17A, the Iowa
16administrative procedure Act, petitions for judicial review
17may be filed in the district court of the county in which the
18hearing under section 86.17 was held, the workers’ compensation
19commissioner shall transmit to the reviewing court the original
20or a certified copy of the entire record of the contested case
21which is the subject of the petition within thirty days after
22receiving written notice from the party filing the petition
23that a petition for judicial review has been filed, and an
24application for stay of agency action during the pendency of
25judicial review shall not be filed in the division of workers’
26compensation of the department of workforce development
27but shall be filed with the district court. Such a review
28proceeding shall be accorded priority over other matters
29pending before the district court.
302. Notwithstanding section 17A.19, subsection 5, a timely
31petition for judicial review filed pursuant to this section
32shall stay execution or enforcement of a decision or order of
33the workers’ compensation commissioner if the party seeking
34judicial review posts a bond securing any compensation awarded
35pursuant to the decision or order with the district court
-11-1within thirty days of filing the petition, in a reasonable
2amount as fixed and approved by the court. Unless either the
3party posting the bond files an objection with the court,
4within twenty days from the date that the bond is fixed and
5approved by the court, that the amount of the bond is not
6reasonable, or the party whose interests are protected by the
7bond files an objection with the court, within twenty days from
8the date that the amount of the bond is fixed and approved by
9the court, that the amount of the bond is not reasonable or
10adequate, the amount of the bond shall be deemed reasonable and
11adequate. If, upon objection, the district court orders the
12amount of the bond posted to be modified, the party seeking
13judicial review shall repost the bond in the amount ordered,
14within twenty days of the date of the order modifying the bond,
15in order to continue the stay of execution or enforcement
16of the decision or order of the workers’ compensation
17commissioner.
18 Sec. 20. Section 86.39, Code 2017, is amended to read as
19follows:
2086.39 Fees — approval.
211. All fees or claims for legal, medical, hospital, and
22burial services rendered under this chapter and chapters 85,
2385A, 85B, and 87 are subject to the approval of the workers’
24compensation commissioner. For services rendered in the
25district court and appellate courts, the attorney fee is
26subject to the approval of a judge of the district court.
272. An attorney shall not recover fees for legal services
28based on the amount of compensation voluntarily paid or
29agreed to be paid to an employee for temporary or permanent
30disability under this chapter, or chapter 85, 85A, 85B, or
3187. An attorney shall only recover a fee based on the amount
32of compensation that the attorney demonstrates would not have
33been paid to the employee but for the efforts of the attorney.
34Any disputes over the recovery of attorney fees under this
35subsection shall be resolved by the workers’ compensation
-12-1commissioner.
2 Sec. 21. Section 86.42, Code 2017, is amended to read as
3follows:
486.42 Judgment by district court on award.
5Any party in interest may present a file-stamped copy
6of an order or decision of the commissioner, from which a
7timely petition for judicial review has not been filed or if
8judicial review has been filed, which has not had execution or
9enforcement stayed as provided in section 17A.19, subsection
105, or section 86.26, subsection 2, or an order or decision
11of a deputy commissioner from which a timely appeal has not
12been taken within the agency and which has become final by
13the passage of time as provided by rule and section 17A.15,
14or an agreement for settlement approved by the commissioner,
15and all papers in connection therewith, to the district court
16where judicial review of the agency action may be commenced.
17The court shall render a decree or judgment and cause the
18clerk to notify the parties. The decree or judgment, in the
19absence of a petition for judicial review or if judicial review
20has been commenced, in the absence of a stay of execution
21or enforcement of the decision or order of the workers’
22compensation commissioner as provided in section 17A.19,
23subsection 5, or section 86.26, subsection 2, or in the absence
24of an act of any party which prevents a decision of a deputy
25workers’ compensation commissioner from becoming final, has the
26same effect and in all proceedings in relation thereto is the
27same as though rendered in a suit duly heard and determined by
28the court.
29 Sec. 22. Section 535.3, subsection 1, Code 2017, is amended
30to read as follows:
311. a. Interest shall be allowed on all money due on
32judgments and decrees of courts at a rate calculated according
33to section 668.13, except for interest due pursuant to section
3485.30 for which the rate shall be ten percent per year.
35b. Notwithstanding paragraph “a”, interest due pursuant
-13-1to section 85.30 shall accrue from the date each compensation
2payment is due at an annual rate equal to the one-year treasury
3constant maturity published by the federal reserve in the most
4recent H15 report settled prior to the date each compensation
5payment is due plus two percent.
6 Sec. 23. EFFECTIVE UPON ENACTMENT. This Act, being deemed
7of immediate importance, takes effect upon enactment.
8 Sec. 24. APPLICABILITY.
91. The sections of this Act amending sections 85.16, 85.18,
1085.23, 85.26, 85.33, 85.34, 85.39, 85.61, 85.71, 86.26, 86.39,
11and 86.42 apply to injuries occurring on or after the effective
12date of this Act.
132. The sections of this Act amending section 85.45 apply to
14commutations for which applications are filed on or after the
15effective date of this Act.
16EXPLANATION
17The inclusion of this explanation does not constitute agreement with
18the explanation’s substance by the members of the general assembly.
19This bill contains various provisions relating to workers’
20compensation.
21Code section 85.16(2) is amended to provide that if an
22employer shows that at the time of an injury for which workers’
23compensation is sought, an employee had positive test results
24reflecting the presence of alcohol or drugs, there is a
25presumption that the employee was intoxicated at the time of
26the injury, and the intoxication was the predominant factor in
27causing the injury, making the injury not compensable. The
28provision also allows the employee to overcome that presumption
29by establishing that the employee was not intoxicated or that
30intoxication was not the predominant factor in causing the
31injury.
32Code section 85.18 is amended to provide that imposition of
33liability on any employer under Code chapter 85 does not create
34a private cause of action.
35Code section 85.23 requiring notice of injury and Code
-14-1section 85.26(1) concerning limitations of actions, are amended
2to define “date of the occurrence of the injury” to mean the
3date the employee knew or should have known that the injury was
4work-related.
5Code section 85.33(3) concerning an employee who is
6temporarily, partially disabled, is amended to include
7requirements for offers of temporary work by employers
8to employees who are temporarily, partially disabled and
9requirements for refusal of such work as not suitable by an
10employee. An employee cannot raise suitability as a reason
11until such time as the refusal and reason are communicated to
12the employer in writing.
13Code section 85.34(2), concerning compensation for
14permanent partial disability, is amended to provide that such
15compensation begins when it is medically indicated that maximum
16medical improvement from the injury has been reached and that
17the extent of loss or percentage of permanent impairment can be
18determined by use of the guides to the evaluation of permanent
19impairment, published by the American medical association,
20as adopted by the workers’ compensation commissioner by rule
21pursuant to Code chapter 17A.
22Code section 85.34(2)(m) is amended to modify language
23providing compensation for a scheduled injury describing the
24whole rather than two-thirds of the upper arm.
25Code section 85.34(2)(u) concerning compensation for
26permanent partial disability for injuries other than scheduled
27injuries under Code section 85.34(2), paragraphs “a” through
28“t”, is amended to provide that a reduction in the employee’s
29earning capacity caused by a disability must take into account
30the employee’s permanent partial disability and the number of
31years in the future it was reasonably anticipated the employee
32would work at the time of the injury. An employee who returns
33to work or is offered work for the same or more money than the
34employee received when injured shall be compensated only for
35functional disability, and not in relation to earning capacity.
-15-1If an employee is injured after age 67, compensation shall be
2paid based on the employee’s resulting loss of earning capacity
3not to exceed an amount equal to 150 weeks of compensation.
4New Code section 85.34(2)(w) provides that a determination
5of the extent of an employee’s loss or permanent impairment
6for a scheduled injury pursuant to Code section 85.34(2),
7paragraphs “a” through “t”, or paragraph “u” when determining
8functional disability and not loss of earning capacity,
9shall be determined solely by use of the guides to the
10evaluation of permanent impairment, published by the American
11medical association, as adopted by the workers’ compensation
12commissioner by rule pursuant to Code chapter 17A. Lay
13testimony or agency expertise cannot be utilized in making this
14determination.
15New Code section 85.34(2)(x) provides that compensation for
16permanent partial disability for an injury terminates on the
17date when compensation for permanent total disability for any
18injury begins. An employee shall not receive compensation
19for permanent partial disability if the employee is receiving
20compensation for permanent total disability.
21Code section 85.34(3)(a) is amended to provide that
22an employee can receive compensation for permanent total
23disability until the employee is no longer permanently and
24totally disabled or reaches the age of 67, whichever occurs
25first. If an employee is injured after reaching the age of
2667, compensation shall be paid so long as the employee remains
27permanently and totally disabled not exceed an amount equal to
28150 weeks of compensation.
29Code section 85.34(3)(b) is amended to provide that if
30compensation for an injury producing permanent disability has
31been paid to a person, the amounts so paid are deductible
32from the total amount of compensation payable to that person
33for permanent total disability. An employee cannot receive
34compensation for permanent partial disability if the employee
35is receiving compensation for permanent total disability.
-16- 1New Code section 85.34(3)(c) provides that an employee
2forfeits the employee’s weekly compensation for a permanent
3total disability for a week in which the employee is receiving
4a payment equal to or greater than 50 percent of the statewide
5average weekly wage from gross earnings from any employer or
6payment for services from any source.
7New Code section 85.34(3)(d) provides that an employee is
8not entitled to compensation for a permanent total disability
9while the employee is receiving unemployment compensation under
10Code chapter 96.
11Code section 85.34(4) is amended to provide that an employer
12can receive credit for excess payments of temporary total
13disability, healing period, or temporary partial disability
14to an employee against the liability of the employer for any
15future weekly benefits due for an injury to the employee.
16Code section 85.34(5) is amended to provide that an employer
17can receive credit for excess payments of any weekly benefits
18paid to an employee against the liability of the employer for
19any future weekly benefits for permanent partial disability
20that is due for any current or subsequent injury to the
21same employee. Provisions limiting the establishment of an
22overpayment and the availability of credit are stricken.
23Code section 85.34(7)(a) relating to compensation of an
24employee in the case of successive disabilities is amended to
25provide that an employer is only liable for that portion of an
26employee’s disability that relates to the injury that serves as
27the basis for the employee’s claim for workers’ compensation.
28An employer is not liable for compensating an employee’s
29preexisting disability that arose out of and in the course of
30employment with the employer to the extent that the preexisting
31disability has already been compensated. Code section
3285.34(7)(b) and (c) relating to compensation of preexisting or
33combined disabilities and successor employers are stricken.
34Code section 85.39, relating to medical examinations of
35injured employees for evaluation of permanent disability, is
-17-1amended to provide that refusal of an employee to submit to an
2examination requested by the employer forfeits the employee’s
3right to any compensation for the period of the refusal.
4Code section 85.39 is also amended to provide that an
5employer is only liable to reimburse an employee for a medical
6examination requested by the employee if the injury for which
7the employee is being examined is found to be compensable under
8workers’ compensation law. An employer is not liable for the
9cost of the examination if the injury for which the employee
10is being examined is determined not to be a compensable
11injury. An employer is liable to pay a reasonable fee for an
12examination requested by the employee with reasonableness to
13be determined based on the typical fee charged by a medical
14provider to perform an impairment rating in the local area
15where the examination is conducted.
16Code section 85.45(1), relating to commutations of future
17payments of compensation, is amended to require that future
18payments may be commuted only upon application of a party
19to the workers’ compensation commissioner and upon written
20consent of all parties to the proposed commutation or partial
21commutation.
22New Code section 85.45(3) provides that the parties to any
23commutation or partial commutation of future compensation
24payments agreed to and ordered pursuant to this Code section
25may also agree that the employee has the right to benefits
26pursuant to Code section 85.27 under such terms and conditions
27as agreed to by the parties, for a specified period of time
28after the commutation or partial commutation agreement has been
29ordered by the workers’ compensation commissioner. During that
30specified period of time, the commissioner has jurisdiction
31of the commutation or partial commutation agreement for
32the purpose of adjudicating the employee’s entitlement to
33benefits provided for in Code section 85.27 as provided in the
34agreement.
35Code section 85.61(7) is amended to provide that for
-18-1purposes of the definition of “personal injury arising out of
2and in the course of business”, an employee’s injury must be
3found to be the predominant factor in causing the disability
4for which worker’s compensation is claimed. An injury is the
5predominant factor in causing a disability if more than 50
6percent of the disability is attributable to the injury.
7Code section 85.71(1)(a), concerning compensation for
8injuries that occur outside of the state, is amended to provide
9that Iowa law is applicable if the employer has a place of
10business in this state and the employee regularly works at
11or from that place of business. The statute is no longer
12applicable when the employer has a place of business in this
13state and the employee is domiciled in this state.
14Code section 86.26, which allows judicial review of
15decisions or orders of the workers’ compensation commissioner
16in district court, is amended to provide that a timely petition
17for judicial review, that is accompanied by a bond securing any
18compensation awarded pursuant to the order or decision as fixed
19and approved by the court, shall stay execution and enforcement
20of the decision or order. Either party may object to the
21amount of the bond set by the court as being unreasonable or
22inadequate.
23Code section 86.39 is amended to provide that an attorney
24cannot recover fees for legal services based on the amount of
25workers’ compensation voluntarily paid or agreed to be paid to
26an employee for temporary or permanent disability. An attorney
27can only recover a fee based on the amount of compensation
28that the attorney demonstrates would not have been paid to the
29employee but for the efforts of the attorney. Disputes over
30the recovery of attorney fees shall be resolved by the workers’
31compensation commissioner.
32Code section 86.42 is amended to refer to new Code section
3386.26(2) which allows a stay of execution and enforcement of
34an order or decision by the workers’ compensation commissioner
35when a petition for judicial review is accompanied by the
-19-1posting of a bond.
2Code section 535.3(1), concerning interest due on unpaid
3weekly workers’ compensation payments, is amended to provide
4that instead of a 10 percent per year interest rate, interest
5shall accrue from the date each compensation payment is due at
6an annual rate equal to the one-year treasury constant maturity
7published by the federal reserve in the most recent H15 report
8settled prior to the date each compensation payment is due plus
92 percent.
10The bill is effective upon enactment.
11The sections of the bill amending Code sections 85.16,
1285.18, 85.23, 85.26, 85.33, 85.34, 85.39, 85.61, 85.71, 86.26,
1386.39, and 86.42 apply to injuries occurring on or after the
14effective date of the bill.
15The sections of the bill amending Code section 85.45 apply
16to commutations for which applications are filed on or after
17the effective date of the bill.
-20-av/rj
2effective date and applicability provisions.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 85.16, subsection 2, Code 2017, is
2amended to read as follows:
32. a. By the employee’s intoxication, which did not arise
4out of and in the course of employment but which was due
5to the effects of alcohol or another narcotic, depressant,
6stimulant, hallucinogenic, or hypnotic drug not prescribed by
7an authorized medical practitioner, if the intoxication was a
8substantial factor in causing the injury.
9b. For the purpose of disallowing compensation under this
10subsection, both of the following apply:
11(1) If the employer shows that, at the time of the injury
12or immediately following the injury, the employee had positive
13test results reflecting the presence of alcohol, or another
14narcotic, depressant, stimulant, hallucinogenic, or hypnotic
15drug which drug either was not prescribed by an authorized
16medical practitioner or was not used in accordance with the
17prescribed use of the drug, it shall be presumed that the
18employee was intoxicated at the time of the injury and that
19intoxication was the predominant factor in causing the injury.
20(2) Once the employer has made a showing as provided
21in subparagraph (1), the burden of proof shall be on the
22employee to overcome the presumption by establishing that the
23employee was not intoxicated at the time of the injury, or that
24intoxication was not the predominant factor in causing the
25injury.
26 Sec. 2. Section 85.18, Code 2017, is amended to read as
27follows:
2885.18 Contract to relieve not operative.
29No contract, rule, or device whatsoever shall operate to
30relieve the employer, in whole or in part, from any liability
31created by this chapter except as herein provided. This
32section does not create a private cause of action.
33 Sec. 3. Section 85.23, Code 2017, is amended to read as
34follows:
3585.23 Notice of injury — failure to give.
-1- 1Unless the employer or the employer’s representative shall
2have actual knowledge of the occurrence of an injury received
3within ninety days from the date of the occurrence of the
4injury, or unless the employee or someone on the employee’s
5behalf or a dependent or someone on the dependent’s behalf
6shall give notice thereof to the employer within ninety days
7from the date of the occurrence of the injury, no compensation
8shall be allowed. For the purposes of this section, “date of
9the occurrence of the injury” means the date that the employee
10knew or should have known that the injury was work-related.
11 Sec. 4. Section 85.26, subsection 1, Code 2017, is amended
12to read as follows:
131. An original proceeding for benefits under this chapter
14or chapter 85A, 85B, or 86, shall not be maintained in any
15contested case unless the proceeding is commenced within two
16years from the date of the occurrence of the injury for which
17benefits are claimed or, if weekly compensation benefits are
18paid under section 86.13, within three years from the date of
19the last payment of weekly compensation benefits. For the
20purposes of this section, “date of the occurrence of the injury”
21 means the date that the employee knew or should have known that
22the injury was work-related.
23 Sec. 5. Section 85.33, subsection 3, Code 2017, is amended
24to read as follows:
253. a. If an employee is temporarily, partially disabled
26and the employer for whom the employee was working at the time
27of injury offers to the employee suitable work consistent
28with the employee’s disability the employee shall accept the
29suitable work, and be compensated with temporary partial
30benefits. If the employer offers the employee suitable work
31and the employee refuses to accept the suitable work with
32the same offered by the employer, the employee shall not be
33compensated with temporary partial, temporary total, or healing
34period benefits during the period of the refusal. Work offered
35at the employer’s principal place of business or established
-2-1place of operation where the employee has previously worked is
2presumed to be geographically suitable for an employee whose
3duties involve travel away from the employer’s principal place
4of business or established place of operation more than fifty
5percent of the time. If suitable work is not offered by the
6employer for whom the employee was working at the time of the
7injury and the employee who is temporarily partially disabled
8elects to perform work with a different employer, the employee
9shall be compensated with temporary partial benefits.
10b. The employer shall communicate an offer of temporary
11work to the employee in writing, including details of lodging,
12meals, and transportation, and shall communicate to the
13employee that if the employee refuses the offer of temporary
14work, the employee shall communicate the refusal and the reason
15for the refusal to the employer in writing and that during the
16period of the refusal the employee will not be compensated with
17temporary partial, temporary total, or healing period benefits,
18unless the work refused is not suitable. If the employee
19refuses the offer of temporary work on the grounds that the
20work is not suitable, the employee shall communicate the
21refusal, along with the reason for the refusal, to the employer
22in writing at the time the offer of work is refused. Failure to
23communicate the reason for the refusal in this manner precludes
24the employee from raising suitability of the work as the reason
25for the refusal until such time as the reason for the refusal
26is communicated in writing to the employer.
27 Sec. 6. Section 85.34, subsection 2, unnumbered paragraph
281, Code 2017, is amended to read as follows:
29Compensation for permanent partial disability shall begin at
30the termination of the healing period provided in subsection 1
31 when it is medically indicated that maximum medical improvement
32from the injury has been reached and that the extent of loss or
33percentage of permanent impairment can be determined by use of
34the guides to the evaluation of permanent impairment, published
35by the American medical association, as adopted by the workers’
-3-1compensation commissioner by rule pursuant to chapter 17A. The
2compensation shall be in addition to the benefits provided by
3sections 85.27 and 85.28. The compensation shall be based
4upon the extent of the disability and upon the basis of eighty
5percent per week of the employee’s average spendable weekly
6earnings, but not more than a weekly benefit amount, rounded to
7the nearest dollar, equal to one hundred eighty-four percent of
8the statewide average weekly wage paid employees as determined
9by the department of workforce development under section 96.19,
10subsection 36, and in effect at the time of the injury. The
11minimum weekly benefit amount shall be equal to the weekly
12benefit amount of a person whose gross weekly earnings are
13thirty-five percent of the statewide average weekly wage. For
14all cases of permanent partial disability compensation shall
15be paid as follows:
16 Sec. 7. Section 85.34, subsection 2, paragraphs m and u,
17Code 2017, are amended to read as follows:
18m. The loss of two-thirds of that part of an arm between
19 including the shoulder joint and to the elbow joint shall equal
20the loss of an arm and the compensation therefor shall be
21weekly compensation during two hundred fifty weeks.
22u. In all cases of permanent partial disability other than
23those hereinabove described or referred to in paragraphs “a”
24through “t” hereof, the compensation shall be paid during
25the number of weeks in relation to five hundred weeks as the
26reduction in the employee’s earning capacity caused by the
27disability bears in relation to the earning capacity that the
28employee possessed when the injury occurred. A determination
29of the reduction in the employee’s earning capacity caused
30by the disability shall take into account the permanent
31partial disability of the employee and the number of years in
32the future it was reasonably anticipated that the employee
33would work at the time of the injury. If an employee who is
34eligible for compensation under this paragraph returns to work
35or is offered work for which the employee receives or would
-4-1receive the same or greater salary, wages, or earnings than
2the employee received at the time of the injury, the employee
3shall be compensated based only upon the employee’s functional
4disability resulting from the injury, and not in relation to
5the employee’s earning capacity. If an employee sustains an
6injury compensable under this paragraph after reaching the age
7of sixty-seven, compensation shall be paid to the employee
8based on the employee’s resulting loss of earning capacity
9not to exceed an amount equal to one hundred fifty weeks of
10compensation.
11 Sec. 8. Section 85.34, subsection 2, Code 2017, is amended
12by adding the following new paragraphs:
13 NEW PARAGRAPH. w. In all cases of permanent partial
14disability described in paragraphs “a” through “t”, or paragraph
15“u” when determining functional disability and not loss of
16earning capacity, the extent of loss or percentage of permanent
17impairment shall be determined solely by utilizing the guides
18to the evaluation of permanent impairment, published by the
19American medical association, as adopted by the workers’
20compensation commissioner by rule pursuant to chapter 17A.
21 Lay testimony or agency expertise shall not be utilized in
22determining loss or percentage of permanent impairment pursuant
23to paragraphs “a” through “t”, or paragraph “u” when determining
24functional disability and not loss of earning capacity.
25 NEW PARAGRAPH. x. Compensation for permanent partial
26disability for an injury shall terminate on the date when
27compensation for permanent total disability for any injury
28begins. An employee shall not receive compensation for
29permanent partial disability if the employee is receiving
30compensation for permanent total disability.
31 Sec. 9. Section 85.34, subsection 3, Code 2017, is amended
32to read as follows:
333. Permanent total disability.
34a. Compensation for an injury causing permanent total
35disability shall be upon the basis of eighty percent per week
-5-1of the employee’s average spendable weekly earnings, but not
2more than a weekly benefit amount, rounded to the nearest
3dollar, equal to two hundred percent of the statewide average
4weekly wage paid employees as determined by the department
5of workforce development under section 96.19, subsection 36,
6and in effect at the time of the injury. The minimum weekly
7benefit amount is equal to the weekly benefit amount of a
8person whose gross weekly earnings are thirty-five percent of
9the statewide average weekly wage. The weekly compensation is
10payable during the period of the employee’s disability until
11the employee is no longer permanently and totally disabled or
12until the employee reaches the age of sixty-seven, whichever
13occurs first. If an employee sustains an injury compensable
14under this subsection after reaching the age of sixty-seven,
15compensation shall be paid to the employee so long as the
16employee remains permanently and totally disabled not to exceed
17an amount equal to one hundred fifty weeks of compensation.
18b. Such compensation shall be in addition to the benefits
19provided in sections 85.27 and 85.28. No compensation shall
20be payable under this subsection for any injury for which
21compensation is payable under subsection 2 of this section.
22In the event compensation has been paid to any person under
23any provision of this chapter, chapter 85A or chapter 85B for
24the same an injury producing a total permanent disability, any
25such amounts so paid shall be deducted from the total amount
26of compensation payable for such permanent total disability.
27An employee shall not receive compensation for permanent
28partial disability if the employee is receiving compensation
29for permanent total disability.
30 Sec. 10. Section 85.34, subsection 3, Code 2017, is amended
31by adding the following new paragraphs:
32 NEW PARAGRAPH. c. An employee forfeits the employee’s
33weekly compensation for a permanent total disability under this
34subsection for a week in which the employee is receiving a
35payment equal to or greater than fifty percent of the statewide
-6-1average weekly wage from any of the following sources:
2(1) Gross earnings from any employer.
3(2) Payment for services from any source.
4 NEW PARAGRAPH. d. An employee is not entitled to
5compensation for a permanent total disability under this
6subsection while the employee is receiving unemployment
7compensation under chapter 96.
8 Sec. 11. Section 85.34, subsections 4 and 5, Code 2017, are
9amended to read as follows:
104. Credits for excess payments. If an employee is paid
11weekly compensation benefits for temporary total disability
12under section 85.33, subsection 1, for a healing period
13under section 85.34, subsection 1, or for temporary partial
14disability under section 85.33, subsection 2, in excess of
15that required by this chapter and chapters 85A, 85B, and 86,
16the excess paid by the employer shall be credited against the
17liability of the employer for permanent partial disability
18under section 85.34, subsection 2 any future weekly benefits
19due for an injury to that employee, provided that the employer
20or the employer’s representative has acted in good faith in
21determining and notifying an employee when the temporary total
22disability, healing period, or temporary partial disability
23benefits are terminated.
245. Recovery of employee overpayment. If an employee is paid
25any weekly benefits in excess of that required by this chapter
26and chapters 85A, 85B, and 86, the excess paid by the employer
27shall be credited against the liability of the employer for
28any future weekly benefits due pursuant to subsection 2, for
29a any current or subsequent injury to the same employee. An
30overpayment can be established only when the overpayment is
31recognized in a settlement agreement approved under section
3286.13, pursuant to final agency action in a contested case
33which was commenced within three years from the date that
34weekly benefits were last paid for the claim for which the
35benefits were overpaid, or pursuant to final agency action
-7-1in a contested case for a prior injury to the same employee.
2The credit shall remain available for eight years after the
3date the overpayment was established. If an overpayment
4is established pursuant to this subsection, the employee
5and employer may enter into a written settlement agreement
6providing for the repayment by the employee of the overpayment.
7The agreement is subject to the approval of the workers’
8compensation commissioner. The employer shall not take any
9adverse action against the employee for failing to agree to
10such a written settlement agreement.
11 Sec. 12. Section 85.34, subsection 7, paragraph a, Code
122017, is amended to read as follows:
13a. An employer is fully liable for compensating all only
14that portion of an employee’s disability that arises out of and
15in the course of the employee’s employment with the employer
16and that relates to the injury that serves as the basis for
17the employee’s claim for compensation under this chapter,
18or chapter 85A, 85B, or 86. An employer is not liable for
19compensating an employee’s preexisting disability that arose
20out of and in the course of employment from a prior injury with
21the employer, to the extent that the employee’s preexisting
22disability has already been compensated under this chapter,
23or chapter 85A, 85B, or 86. An employer is not liable for
24compensating an employee’s preexisting disability that arose
25out of and in the course of employment with a different
26employer or from causes unrelated to employment.
27 Sec. 13. Section 85.34, subsection 7, paragraphs b and c,
28Code 2017, are amended by striking the paragraphs.
29 Sec. 14. Section 85.39, Code 2017, is amended to read as
30follows:
3185.39 Examination of injured employees.
321. After an injury, the employee, if requested by the
33employer, shall submit for examination at some reasonable
34time and place and as often as reasonably requested, to a
35physician or physicians authorized to practice under the laws
-8-1of this state or another state, without cost to the employee;
2but if the employee requests, the employee, at the employee’s
3own cost, is entitled to have a physician or physicians
4of the employee’s own selection present to participate in
5the examination. If an employee is required to leave work
6for which the employee is being paid wages to attend the
7requested examination, the employee shall be compensated at
8the employee’s regular rate for the time the employee is
9required to leave work, and the employee shall be furnished
10transportation to and from the place of examination, or the
11employer may elect to pay the employee the reasonable cost of
12the transportation. The refusal of the employee to submit to
13the examination shall suspend forfeit the employee’s right to
14any compensation for the period of the refusal. Compensation
15shall not be payable for the period of suspension refusal.
162. If an evaluation of permanent disability has been made by
17a physician retained by the employer and the employee believes
18this evaluation to be too low, the employee shall, upon
19application to the commissioner and upon delivery of a copy of
20the application to the employer and its insurance carrier, be
21reimbursed by the employer the reasonable fee for a subsequent
22examination by a physician of the employee’s own choice, and
23reasonably necessary transportation expenses incurred for the
24examination. The physician chosen by the employee has the
25right to confer with and obtain from the employer-retained
26physician sufficient history of the injury to make a proper
27examination. An employer is only liable to reimburse an
28employee for the cost of an examination conducted pursuant to
29this subsection if the injury for which the employee is being
30examined is determined to be compensable under this chapter or
31chapter 85A or 85B. An employer is not liable for the cost of
32such an examination if the injury for which the employee is
33being examined is determined not to be a compensable injury. A
34determination of the reasonableness of a fee for an examination
35made pursuant to this subsection, shall be based on the typical
-9-1fee charged by a medical provider to perform an impairment
2rating in the local area where the examination is conducted.
3 Sec. 15. Section 85.45, subsection 1, unnumbered paragraph
41, Code 2017, is amended to read as follows:
5Future payments of compensation may be commuted to a present
6worth lump sum payment only upon application of a party to
7the commissioner and upon written consent of all parties to
8the proposed commutation or partial commutation, and on the
9following conditions:
10 Sec. 16. Section 85.45, Code 2017, is amended by adding the
11following new subsection:
12 NEW SUBSECTION. 3. The parties to any commutation or
13partial commutation of future payments agreed to and ordered
14pursuant to this section may agree that the employee has the
15right to benefits pursuant to section 85.27 under such terms
16and conditions as agreed to by the parties, for a specified
17period of time after the commutation or partial commutation
18agreement has been ordered by the workers’ compensation
19commissioner. During that specified period of time, the
20commissioner shall have jurisdiction of the commutation or
21partial commutation agreement for the purpose of adjudicating
22the employee’s entitlement to benefits provided for in section
2385.27 as provided in the agreement.
24 Sec. 17. Section 85.61, subsection 7, unnumbered paragraph
251, Code 2017, is amended to read as follows:
26The words “personal injury arising out of and in the course
27of the employment” shall include injuries to employees whose
28services are being performed on, in, or about the premises
29which are occupied, used, or controlled by the employer, and
30also injuries to those who are engaged elsewhere in places
31where their employer’s business requires their presence and
32subjects them to dangers incident to the business but only
33if such injuries are found to be the predominant factor in
34causing the disability for which compensation is claimed under
35this chapter, or chapter 85A or 85B. For purposes of this
-10-1subsection, an injury is the predominant factor in causing a
2disability if more than fifty percent of the disability is
3attributable to the injury.
4 Sec. 18. Section 85.71, subsection 1, paragraph a, Code
52017, is amended to read as follows:
6a. The employer has a place of business in this state and
7the employee regularly works at or from that place of business,
8or the employer has a place of business in this state and the
9employee is domiciled in this state.
10 Sec. 19. Section 86.26, Code 2017, is amended to read as
11follows:
1286.26 Judicial review.
131. Judicial review of decisions or orders of the workers’
14compensation commissioner may be sought in accordance
15with chapter 17A. Notwithstanding chapter 17A, the Iowa
16administrative procedure Act, petitions for judicial review
17may be filed in the district court of the county in which the
18hearing under section 86.17 was held, the workers’ compensation
19commissioner shall transmit to the reviewing court the original
20or a certified copy of the entire record of the contested case
21which is the subject of the petition within thirty days after
22receiving written notice from the party filing the petition
23that a petition for judicial review has been filed, and an
24application for stay of agency action during the pendency of
25judicial review shall not be filed in the division of workers’
26compensation of the department of workforce development
27but shall be filed with the district court. Such a review
28proceeding shall be accorded priority over other matters
29pending before the district court.
302. Notwithstanding section 17A.19, subsection 5, a timely
31petition for judicial review filed pursuant to this section
32shall stay execution or enforcement of a decision or order of
33the workers’ compensation commissioner if the party seeking
34judicial review posts a bond securing any compensation awarded
35pursuant to the decision or order with the district court
-11-1within thirty days of filing the petition, in a reasonable
2amount as fixed and approved by the court. Unless either the
3party posting the bond files an objection with the court,
4within twenty days from the date that the bond is fixed and
5approved by the court, that the amount of the bond is not
6reasonable, or the party whose interests are protected by the
7bond files an objection with the court, within twenty days from
8the date that the amount of the bond is fixed and approved by
9the court, that the amount of the bond is not reasonable or
10adequate, the amount of the bond shall be deemed reasonable and
11adequate. If, upon objection, the district court orders the
12amount of the bond posted to be modified, the party seeking
13judicial review shall repost the bond in the amount ordered,
14within twenty days of the date of the order modifying the bond,
15in order to continue the stay of execution or enforcement
16of the decision or order of the workers’ compensation
17commissioner.
18 Sec. 20. Section 86.39, Code 2017, is amended to read as
19follows:
2086.39 Fees — approval.
211. All fees or claims for legal, medical, hospital, and
22burial services rendered under this chapter and chapters 85,
2385A, 85B, and 87 are subject to the approval of the workers’
24compensation commissioner. For services rendered in the
25district court and appellate courts, the attorney fee is
26subject to the approval of a judge of the district court.
272. An attorney shall not recover fees for legal services
28based on the amount of compensation voluntarily paid or
29agreed to be paid to an employee for temporary or permanent
30disability under this chapter, or chapter 85, 85A, 85B, or
3187. An attorney shall only recover a fee based on the amount
32of compensation that the attorney demonstrates would not have
33been paid to the employee but for the efforts of the attorney.
34Any disputes over the recovery of attorney fees under this
35subsection shall be resolved by the workers’ compensation
-12-1commissioner.
2 Sec. 21. Section 86.42, Code 2017, is amended to read as
3follows:
486.42 Judgment by district court on award.
5Any party in interest may present a file-stamped copy
6of an order or decision of the commissioner, from which a
7timely petition for judicial review has not been filed or if
8judicial review has been filed, which has not had execution or
9enforcement stayed as provided in section 17A.19, subsection
105, or section 86.26, subsection 2, or an order or decision
11of a deputy commissioner from which a timely appeal has not
12been taken within the agency and which has become final by
13the passage of time as provided by rule and section 17A.15,
14or an agreement for settlement approved by the commissioner,
15and all papers in connection therewith, to the district court
16where judicial review of the agency action may be commenced.
17The court shall render a decree or judgment and cause the
18clerk to notify the parties. The decree or judgment, in the
19absence of a petition for judicial review or if judicial review
20has been commenced, in the absence of a stay of execution
21or enforcement of the decision or order of the workers’
22compensation commissioner as provided in section 17A.19,
23subsection 5, or section 86.26, subsection 2, or in the absence
24of an act of any party which prevents a decision of a deputy
25workers’ compensation commissioner from becoming final, has the
26same effect and in all proceedings in relation thereto is the
27same as though rendered in a suit duly heard and determined by
28the court.
29 Sec. 22. Section 535.3, subsection 1, Code 2017, is amended
30to read as follows:
311. a. Interest shall be allowed on all money due on
32judgments and decrees of courts at a rate calculated according
33to section 668.13, except for interest due pursuant to section
3485.30 for which the rate shall be ten percent per year.
35b. Notwithstanding paragraph “a”, interest due pursuant
-13-1to section 85.30 shall accrue from the date each compensation
2payment is due at an annual rate equal to the one-year treasury
3constant maturity published by the federal reserve in the most
4recent H15 report settled prior to the date each compensation
5payment is due plus two percent.
6 Sec. 23. EFFECTIVE UPON ENACTMENT. This Act, being deemed
7of immediate importance, takes effect upon enactment.
8 Sec. 24. APPLICABILITY.
91. The sections of this Act amending sections 85.16, 85.18,
1085.23, 85.26, 85.33, 85.34, 85.39, 85.61, 85.71, 86.26, 86.39,
11and 86.42 apply to injuries occurring on or after the effective
12date of this Act.
132. The sections of this Act amending section 85.45 apply to
14commutations for which applications are filed on or after the
15effective date of this Act.
16EXPLANATION
17The inclusion of this explanation does not constitute agreement with
18the explanation’s substance by the members of the general assembly.
19This bill contains various provisions relating to workers’
20compensation.
21Code section 85.16(2) is amended to provide that if an
22employer shows that at the time of an injury for which workers’
23compensation is sought, an employee had positive test results
24reflecting the presence of alcohol or drugs, there is a
25presumption that the employee was intoxicated at the time of
26the injury, and the intoxication was the predominant factor in
27causing the injury, making the injury not compensable. The
28provision also allows the employee to overcome that presumption
29by establishing that the employee was not intoxicated or that
30intoxication was not the predominant factor in causing the
31injury.
32Code section 85.18 is amended to provide that imposition of
33liability on any employer under Code chapter 85 does not create
34a private cause of action.
35Code section 85.23 requiring notice of injury and Code
-14-1section 85.26(1) concerning limitations of actions, are amended
2to define “date of the occurrence of the injury” to mean the
3date the employee knew or should have known that the injury was
4work-related.
5Code section 85.33(3) concerning an employee who is
6temporarily, partially disabled, is amended to include
7requirements for offers of temporary work by employers
8to employees who are temporarily, partially disabled and
9requirements for refusal of such work as not suitable by an
10employee. An employee cannot raise suitability as a reason
11until such time as the refusal and reason are communicated to
12the employer in writing.
13Code section 85.34(2), concerning compensation for
14permanent partial disability, is amended to provide that such
15compensation begins when it is medically indicated that maximum
16medical improvement from the injury has been reached and that
17the extent of loss or percentage of permanent impairment can be
18determined by use of the guides to the evaluation of permanent
19impairment, published by the American medical association,
20as adopted by the workers’ compensation commissioner by rule
21pursuant to Code chapter 17A.
22Code section 85.34(2)(m) is amended to modify language
23providing compensation for a scheduled injury describing the
24whole rather than two-thirds of the upper arm.
25Code section 85.34(2)(u) concerning compensation for
26permanent partial disability for injuries other than scheduled
27injuries under Code section 85.34(2), paragraphs “a” through
28“t”, is amended to provide that a reduction in the employee’s
29earning capacity caused by a disability must take into account
30the employee’s permanent partial disability and the number of
31years in the future it was reasonably anticipated the employee
32would work at the time of the injury. An employee who returns
33to work or is offered work for the same or more money than the
34employee received when injured shall be compensated only for
35functional disability, and not in relation to earning capacity.
-15-1If an employee is injured after age 67, compensation shall be
2paid based on the employee’s resulting loss of earning capacity
3not to exceed an amount equal to 150 weeks of compensation.
4New Code section 85.34(2)(w) provides that a determination
5of the extent of an employee’s loss or permanent impairment
6for a scheduled injury pursuant to Code section 85.34(2),
7paragraphs “a” through “t”, or paragraph “u” when determining
8functional disability and not loss of earning capacity,
9shall be determined solely by use of the guides to the
10evaluation of permanent impairment, published by the American
11medical association, as adopted by the workers’ compensation
12commissioner by rule pursuant to Code chapter 17A. Lay
13testimony or agency expertise cannot be utilized in making this
14determination.
15New Code section 85.34(2)(x) provides that compensation for
16permanent partial disability for an injury terminates on the
17date when compensation for permanent total disability for any
18injury begins. An employee shall not receive compensation
19for permanent partial disability if the employee is receiving
20compensation for permanent total disability.
21Code section 85.34(3)(a) is amended to provide that
22an employee can receive compensation for permanent total
23disability until the employee is no longer permanently and
24totally disabled or reaches the age of 67, whichever occurs
25first. If an employee is injured after reaching the age of
2667, compensation shall be paid so long as the employee remains
27permanently and totally disabled not exceed an amount equal to
28150 weeks of compensation.
29Code section 85.34(3)(b) is amended to provide that if
30compensation for an injury producing permanent disability has
31been paid to a person, the amounts so paid are deductible
32from the total amount of compensation payable to that person
33for permanent total disability. An employee cannot receive
34compensation for permanent partial disability if the employee
35is receiving compensation for permanent total disability.
-16- 1New Code section 85.34(3)(c) provides that an employee
2forfeits the employee’s weekly compensation for a permanent
3total disability for a week in which the employee is receiving
4a payment equal to or greater than 50 percent of the statewide
5average weekly wage from gross earnings from any employer or
6payment for services from any source.
7New Code section 85.34(3)(d) provides that an employee is
8not entitled to compensation for a permanent total disability
9while the employee is receiving unemployment compensation under
10Code chapter 96.
11Code section 85.34(4) is amended to provide that an employer
12can receive credit for excess payments of temporary total
13disability, healing period, or temporary partial disability
14to an employee against the liability of the employer for any
15future weekly benefits due for an injury to the employee.
16Code section 85.34(5) is amended to provide that an employer
17can receive credit for excess payments of any weekly benefits
18paid to an employee against the liability of the employer for
19any future weekly benefits for permanent partial disability
20that is due for any current or subsequent injury to the
21same employee. Provisions limiting the establishment of an
22overpayment and the availability of credit are stricken.
23Code section 85.34(7)(a) relating to compensation of an
24employee in the case of successive disabilities is amended to
25provide that an employer is only liable for that portion of an
26employee’s disability that relates to the injury that serves as
27the basis for the employee’s claim for workers’ compensation.
28An employer is not liable for compensating an employee’s
29preexisting disability that arose out of and in the course of
30employment with the employer to the extent that the preexisting
31disability has already been compensated. Code section
3285.34(7)(b) and (c) relating to compensation of preexisting or
33combined disabilities and successor employers are stricken.
34Code section 85.39, relating to medical examinations of
35injured employees for evaluation of permanent disability, is
-17-1amended to provide that refusal of an employee to submit to an
2examination requested by the employer forfeits the employee’s
3right to any compensation for the period of the refusal.
4Code section 85.39 is also amended to provide that an
5employer is only liable to reimburse an employee for a medical
6examination requested by the employee if the injury for which
7the employee is being examined is found to be compensable under
8workers’ compensation law. An employer is not liable for the
9cost of the examination if the injury for which the employee
10is being examined is determined not to be a compensable
11injury. An employer is liable to pay a reasonable fee for an
12examination requested by the employee with reasonableness to
13be determined based on the typical fee charged by a medical
14provider to perform an impairment rating in the local area
15where the examination is conducted.
16Code section 85.45(1), relating to commutations of future
17payments of compensation, is amended to require that future
18payments may be commuted only upon application of a party
19to the workers’ compensation commissioner and upon written
20consent of all parties to the proposed commutation or partial
21commutation.
22New Code section 85.45(3) provides that the parties to any
23commutation or partial commutation of future compensation
24payments agreed to and ordered pursuant to this Code section
25may also agree that the employee has the right to benefits
26pursuant to Code section 85.27 under such terms and conditions
27as agreed to by the parties, for a specified period of time
28after the commutation or partial commutation agreement has been
29ordered by the workers’ compensation commissioner. During that
30specified period of time, the commissioner has jurisdiction
31of the commutation or partial commutation agreement for
32the purpose of adjudicating the employee’s entitlement to
33benefits provided for in Code section 85.27 as provided in the
34agreement.
35Code section 85.61(7) is amended to provide that for
-18-1purposes of the definition of “personal injury arising out of
2and in the course of business”, an employee’s injury must be
3found to be the predominant factor in causing the disability
4for which worker’s compensation is claimed. An injury is the
5predominant factor in causing a disability if more than 50
6percent of the disability is attributable to the injury.
7Code section 85.71(1)(a), concerning compensation for
8injuries that occur outside of the state, is amended to provide
9that Iowa law is applicable if the employer has a place of
10business in this state and the employee regularly works at
11or from that place of business. The statute is no longer
12applicable when the employer has a place of business in this
13state and the employee is domiciled in this state.
14Code section 86.26, which allows judicial review of
15decisions or orders of the workers’ compensation commissioner
16in district court, is amended to provide that a timely petition
17for judicial review, that is accompanied by a bond securing any
18compensation awarded pursuant to the order or decision as fixed
19and approved by the court, shall stay execution and enforcement
20of the decision or order. Either party may object to the
21amount of the bond set by the court as being unreasonable or
22inadequate.
23Code section 86.39 is amended to provide that an attorney
24cannot recover fees for legal services based on the amount of
25workers’ compensation voluntarily paid or agreed to be paid to
26an employee for temporary or permanent disability. An attorney
27can only recover a fee based on the amount of compensation
28that the attorney demonstrates would not have been paid to the
29employee but for the efforts of the attorney. Disputes over
30the recovery of attorney fees shall be resolved by the workers’
31compensation commissioner.
32Code section 86.42 is amended to refer to new Code section
3386.26(2) which allows a stay of execution and enforcement of
34an order or decision by the workers’ compensation commissioner
35when a petition for judicial review is accompanied by the
-19-1posting of a bond.
2Code section 535.3(1), concerning interest due on unpaid
3weekly workers’ compensation payments, is amended to provide
4that instead of a 10 percent per year interest rate, interest
5shall accrue from the date each compensation payment is due at
6an annual rate equal to the one-year treasury constant maturity
7published by the federal reserve in the most recent H15 report
8settled prior to the date each compensation payment is due plus
92 percent.
10The bill is effective upon enactment.
11The sections of the bill amending Code sections 85.16,
1285.18, 85.23, 85.26, 85.33, 85.34, 85.39, 85.61, 85.71, 86.26,
1386.39, and 86.42 apply to injuries occurring on or after the
14effective date of the bill.
15The sections of the bill amending Code section 85.45 apply
16to commutations for which applications are filed on or after
17the effective date of the bill.
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