About the Firm - Practice Areas
iowa personal injury attorney
• Workers' Compensation
• Workers' Compensation Questions
- Who Administers the Workers' Compensation System?
- Who is Covered by Workers Compensation?
- When is an Injury Related to Work?
- What is the Statute of Limitations for Workers' Compensation Claims?
- What Type of Notice Needs to be Given to the Employer?
- What Medical Benefits do I Receive as a Part of My Workers' Compensation Case?
- Temporary/Healing Period Benefits
- What Weekly Rate Do I Receive When I Am Receiving Workers' Compensation?
- What Type of Cash Benefits are Paid for Workers' Compensation Injuries?
• Temporary/Healing Period Benefits
• Temporary Partial Disability Benefits
• Permanent Partial Disability Benefits
• Permanent Total Disability Benefits
• Death Benefits
• Interest
• Penalty Benefits
• Starting a Compensation Claim
• Fired for Filing for Compensation
• Recurring Issues
• Personal Injury
• Long Term Disability
Neifert, Byrne & Ozga is an Iowa law firm representing injured workers and other injured Iowans in Iowa workers' compensation, personal injury and long term disability cases. We represent only parties who have been injured, not insurance carriers or employers. A synopsis of the types of law that we practice is provided below.
Workers' Compensation
Iowa's workers' compensation system was initiated in 1912. The Iowa workers' compensation system is designed to provide a relatively quick means of addressing the injuries of Iowa workers who have been hurt on the job. Unfortunately, although the Iowa workers' compensation system is designed to provide a quick response to the injuries suffered by workers, it can at times become a complicated system that requires attorneys to fully protect the interests of injured workers.
Businesses in Iowa are required to have Iowa workers' compensation insurance, or to self-insure their businesses so Iowa workers' compensation benefits are provided. As a practical matter, most businesses in the state have workers' compensation insurance, and thus are covered under Iowa workers' compensation laws. This does not always mean that things go smoothly once an injury is reported, but it does mean that in most cases the employer has coverage for an injury that arises out of and in the course of employment.
The Iowa workers' compensation laws are meant to be self-effectuating. This means that if an individual has an injury at work, and reports that injury to the employer, the employer is to provide three things to the worker - payment for medical care that is authorized by the employer; payment for time off work; and payment for a permanent impairment or disability if the injury causes permanent problems. The difficulties come when the employer denies that an injury is related to work, or refuses to authorize medical care, or refuses to pay for temporary or permanency benefits.
Iowa workers' compensation represents a compromise between competing interests. A worker who is injured at work does not need to prove negligence on the part of the employer in order to have an Iowa workers' compensation case. In exchange for this no-fault system, the injured worker gives up the right to be completely compensated for the injury. The injured worker does not get to recover all the money that may be lost as a result of his or her injury. Instead, the worker is paid for time lost from work (temporary disability or temporary partial disability benefits) and for benefits for permanent disability. You should also understand that because this is an Iowa workers' compensation claim and not a personal injury lawsuit, recovery is not allowed for physical pain and suffering, mental anguish and humiliation, or the value of the loss of enjoyment of life caused by the work injury.
The following questions arise repeatedly concerning the Iowa workers' compensation process:
The following questions arise repeatedly concerning the workers' compensation process:
Who Administers the Workers' Compensation System?
The Iowa Workers' Compensation Commissioner is responsible for administering the Iowa workers' compensation program. The central office for the Iowa Workers' Compensation Commissioner is located at 1000 E. Grand Avenue, Des Moines, IA 50319. To reach the Iowa Workers' Compensation Commissioner's office, call 515-281-5387. Although there is only one office for the Workers' Compensation Commissioner, hearings on workers' compensation cases are held throughout the state. The Commissioner's office website address is http://www.iowaworkforce.org/wc/ . The Commissioner's website contains a form which provides helpful information about workers' compensation in Iowa. That form can be found at http://www.iowaworkforce.org/wc/2010QA.pdf .
Who is Covered by Workers Compensation?
Generally, all employees are covered by Iowa workers' compensation. There are times when injured workers are independent contractors and they are not covered by Iowa workers' compensation. The question of whether a worker is an independent contractor or an employer is a question of fact. Generally, if the employer controls the type of work that you do, and can direct the hours of employment, the tasks you are doing etc., you would not be considered an independent contractor. If you have an injury at work and the employer denies the claim indicating that you are an independent contractor, that may be an occasion to contact an attorney concerning your claim.
When is an Injury Related to Work?
In order for an injury to be covered by Iowa workers' compensation, the injury must "arise out of" employment, and the injury must occur "in the course of employment." Typically, if a worker has a traumatic injury while at work, this is usually considered an injury that arises out of and in the course of employment. For example, if you are working, and a machine crushes your hand, this is considered to be an injury that has arisen out of and in the course of employment.
The more difficult case is where an employee develops an injury that occurs over time. These injuries are sometimes called "cumulative" injuries or "repetitive" injuries. In many cases, these claims are also considered to have arisen out of employment. Unlike other states, the Iowa workers' compensation laws do not provide that a work injury be the sole or even primary cause for your injury. As long as work is a substantial contributing factor to your injury, it should be covered by Iowa workers' compensation. The mere fact that an injury is not a traumatic injury does not mean that it is not covered under workers' compensation. Again, if your claim is denied because the employer does not believe your injury is related to work, you should contact an attorney.
What is the Statute of Limitations for Workers' Compensation Claims?
There are actually three statute of limitations periods for Iowa workers' compensation claims. If no cash payments are made in the claim, you have two years from the date of the injury to file a petition with the Iowa workers' compensation commissioner. Sometimes determining the date of injury is a difficult task, particularly in cumulative injury claims. In these cases, you can sometimes use the date that you discover that the injury is related to work as the date of injury for Iowa workers' compensation purposes. Again, this is a complicated area, and it is useful to contact an attorney if you have any questions about the date of injury, and whether you fall within the statute of limitations.
If you have been paid cash benefits (weekly Iowa workers' compensation benefits), you have three years from the last date of payment of benefits to file a claim with the Iowa workers' compensation commissioner. So, if you are paid permanency benefits, and those benefits ended on October 24, 2010, you have until October 24, 2013 to file a petition with the Iowa workers' compensation commissioner. Note that this refers only to weekly cash benefits, not medical benefits. Medical benefits do not extend the statute of limitations for obtaining cash benefits.
With respect to medical benefits, if your claim is accepted, you have lifetime medical benefits. This means that if you have an injury that is related to work, all of the treatment you need for that injury is covered for the remainder of your life. Of course, you will have to prove that the treatment is related to the workers' compensation accident and not to a new accident, and insurance carriers will often try to prove that your need for medical care is not because of the work injury, but theoretically you have lifetime medical coverage.
What Type of Notice Needs to be Given to the Employer for a Workers' Compensation Injury?
The Iowa workers' compensation statute provides that an employer must be notified of a work injury within 90 days of the date of the injury. If an employer has actual notice of an injury, no specific notice is necessary. Notice of the injury does not need to be written, although it is sometimes better to notify the employer in writing so there is no question that the employer has notice. There is nothing particular that you have to say in a notice to the employer. All you need to indicate is that you had a workers' compensation injury, the date of the injury (if you know the date), and the fact that you are claiming workers' compensation benefits for the injury.
Again, as with other areas of Iowa workers' compensation law, the notice issue, particularly in situations involving cumulative injuries, can be difficult to determine.
What Type of Medical Benefits do I Receive as a Part of My Workers' Compensation Case?
The statute provides that the employer is to provide reasonable care for you injuries. This care is to be provided with reasonable promptness, and without undue inconvenience to the claimant. What this means is that if you have a work-related injury, the employer is to provide care promptly, that care must be adequate to address the medical problems you are having, and the care must be reasonably close to where you live (this can be a particular problem with workers who do not live in Iowa, such as truck drivers). All of these issues can raise problems with your Iowa workers' compensation case.
One important thing to realize about medical care in an Iowa workers' compensation case is that the employer has a right to direct the care. This means that in most situations, the employer will get to choose the doctor who provides treatment to you. If a doctor is not authorized by the employer, the employer does not need to pay for the treatment that has been provided, except in very limited circumstances. This means that you cannot go to your own doctor and expect to have the employer pay for the care you receive. The exception is when you are able to prove that care that you have received was "beneficial care." In Bell Bros. v. Gwinn , 779 N.W.2d 193 (Iowa 2010), a case handled by the attorneys at Neifert, Byrne & Ozga, the court held that if the claimant could establish that the care was more beneficial than that being provided by the employer, the employer could be ordered to pay for that care. In certain cases, the employer and insurance carrier may be willing to allow you to see your own doctor, but that is the exception rather than the rule.
The claimant can challenge the adequacy of the medical services provided by the employer in certain situations. This can occur if the care provided is not reasonable to treat your injuries, or if the care is not provided promptly, or if the care is not convenient for the injured worker. The application for alternate medical care is a relatively fast procedure, and a decision must be issued in the case within ten working days of the filing of the application. Mere dissatisfaction with the care provided is not sufficient reason to allow for the substitution of care, but if the employer has failed to provide care, or has not provided care promptly, an alternate medical care proceeding may be a means of changing the care.
In situations where the workers' compensation insurance carrier has denied that the claim should be paid, Iowa law provides that the health insurance carrier is required to pay the bills, if the injured worker has health insurance. This can be a very important fact for workers who are lucky enough to have insurance coverage. On some occasions, this creates difficulties, as the health insurance carrier tries to argue that the claim is a workers' compensation claim, while the workers' compensation carrier argues the claim is not related to work.
Do I Get Paid Mileage for Medical Travel?
If you have an accepted claim, you are entitled to payment of mileage to and from your medical appointments. If you do not have transportation, the employer has to provide transportation for you. The current medical mileage rate is .50 cents per mile, as of July 1, 2010. This rate changes each July 1, and is based on the rate used by the Internal Revenue Service.
What Weekly Rate Do I Receive When I Am Receiving Workers' Compensation?
The weekly Iowa workers' compensation rate is generally based on your income in the thirteen weeks prior to your injury. The weekly rate is based on the "customary" hours and wages you had at the time of the injury. Generally, the rate is computed by taking the customary hours and wages to compute an average weekly wage. The Iowa workers' compensation rate is usually between 60% and 66% of average weekly wage, and varies depending on marital status and the number of dependents you have.
The rate is based on your "customary" wage, and this generally starts with the income you had in the 13 weeks before your injury. Although overtime hours are considered, they are calculated at the straight time rate, not the overtime rate. For example, if you regularly make $20.00 per hour, but get $30.00 per hour for overtime, the overtime hours are included, but at the $20.00 rate rather than the $30.00 rate.
Rate disputes are fairly common in workers' compensation cases, and sometimes the employer will seek to include weeks in the rate that are not customary weeks.
What Type of Cash Benefits are Paid for Workers' Compensation Injuries?
There are five types of cash benefits - temporary benefits (also called healing period benefits in certain situations), temporary partial disability benefits, permanent partial disability benefits; permanent total disability benefits; and death benefits. These are described below:
Temporary/Healing Period Benefits
If you are injured at work and you have to be off work because of the injury, you will be paid temporary benefits at your weekly Iowa workers' compensation rate. These benefits will continue until you return to work, or are able to perform work that is substantially similar to the work you were performing at the time of the injury, or when it is medically indicated that no significant improvement from the injury is anticipated (sometimes called "maximum medical improvement"). Whichever of these conditions occurs first will stop your temporary benefits. At times, the employer may seek to end benefits earlier than this, but these are the three criteria stated in the statute for the termination of benefits, and the attempt to terminate benefits before one of the criteria is met is not consistent with the statute.
Temporary Partial Disability Benefits
These benefits are payable in situations where an injured worker has been able to return to employment, but the employment to which they have returned pays them less than their average weekly wage. In these situations, the worker is paid workers' compensation benefits in an amount that is equal to 2/3 of the difference between the average weekly wage and the wage they are currently receiving. This amount can, and often does, vary week to week. As an example, if you were making $600.00 per week before the injury, but only $500.00 after the injury, the temporary partial disability amount would be $66.67 (2/3 of the $100.00 difference between the wage before and the wage after the injury). Temporary partial disability benefits are often overlooked by the employer and insurance carriers.
Permanent Partial Disability Benefits
Permanent partial disability benefits are paid for injuries that cause a permanent functional loss of a part of their body. The amount of these benefits depends on two things - the body part affected and the degree of impairment or disability.
If a person has a "scheduled injury," the benefits will typically be based only on the impairment to the specific body part. Although the effects of the injury are considered in determining the extent of impairment for a scheduled injury, typically the recovery for these types of injury is limited. This can sometimes be unfair to the injured worker. For example, a worker may lose his or her job because of an injury to an arm or leg, but recovery may be limited to the schedule, based on the percentage ratings provided by the doctors. A scheduled injury is one that affects certain parts of the body that are set forth in the Iowa workers' compensation law. These include injuries to the arms, legs, hands and feet. The maximum weeks of benefits for certain body parts is as follows:
• Leg 220 weeks
• Foot 150 weeks
• Arm 250 weeks
• Hand 190 weeks
• Eye 140 weeks
• Loss of hearing:
- One ear 50 weeks
- Both ears 175 weeks
• Thumb 60 weeks
• Index finger 35 weeks
• 2nd finger 30 weeks
• 3rd finger 25 weeks
• 4th finger 20 weeks
• Great toe 40 weeks
• Other toes 15 weeks
Loss of one joint of finger or toe equals loss of one-half member.
"Unscheduled injuries" are those injuries that are not specifically listed in the Iowa workers' compensation statute. These include injuries such as injuries to the hips, back, neck, and head. Unlike scheduled injuries, which are treated according to the impairment to the specific body part, unscheduled injuries are treated according to the "industrial disability" method. What this means is that an injured workers' loss of earning capacity is taken into account in determining the extent of the person's disability. In order to determine the extent of loss of earning capacity, a number of factors are taken into account including the level of functional impairment, age, intelligence, education, qualifications, experience and ability to engage in employment for which the employee is suited. If an employee has lost his or her job as a result of an unscheduled injury, or the employer has indicated they cannot accommodate the employee's injury, this is evidence of lack of employability.
Permanent Total Disability Benefits
In certain cases, where an injury has a very significant impact on the individual's ability to continue to work, permanent total disability benefits can be paid to the individual for the remainder of the injured worker's life. Permanent and total disability is the result of many factors. These factors include functional disability resulting from the employee's physical condition, age, education, experience, and the inability, because of the injury, to engage in employment for which the employee is fitted. Permanent and total disability occurs when an injury "wholly disables the employee from performing work that the employee's experience, training, intelligence, and physical capacities would otherwise permit the employee to perform." Total disability does not require a state of absolute helplessness. The pertinent question is whether there are job for which the injured worker can realistically compete.
Although the courts in Iowa workers' compensation cases have made it clear that an individual does not have to be absolutely helpless in order to be permanently and totally disabled, in many cases, employers and insurance carriers take the position that unless a person is totally helpless, they will not pay permanent and total benefits. Representation is therefore often a necessity to maximize the benefits received by the individual.
Death Benefits
When a person dies as a result of a work accident, the individual's spouse can receive benefits for the remainder of his or her life. In the case of remarriage, the surviving spouse receives a lump sum of two years of benefits, if there are no surviving children entitled to benefits. Surviving children may receive benefits until age 18, or until age 25 if they are a student. If a person does not have dependents, no benefits are payable at death, other than benefits that may have been owed from a permanent impairment that occurred before death.
Death benefits can be paid even if the death was not the result of a specific accident. In some cases, such as those involving heart attacks, suicide as a result of depression caused by work activities, or infection caused as a result of treatment provided for a work injury, death benefits can be provided even though death does not occur because of a specific event.
Interest
Because the Iowa workers' compensation system is meant to be one in which the employer and insurance carrier automatically provide benefits to an injured worker even in the absence of the filing of a formal claim with the workers' compensation commissioner, the legislature has provided that when payments are not made in a timely manner, interest is to be paid on those benefits. The rate of interest in Iowa workers' compensation cases is 10%.
Penalty Benefits
The workers' compensation statute sets up a situation where the employer and insurance carrier can be subject to a penalty of up to 50% of certain benefits. This situation occurs when an employer and insurance carrier delays, denies, or terminates benefits "without reasonable or probable cause or excuse." This statute was modified in 2009 by the legislature to make clear that if the employer or insurance carrier delays, denies or terminates benefits without reasonable or probable cause or excuse, penalty benefits shall be awarded by the commissioner.
In order to avoid the imposition of penalty benefits, the employer and insurance carrier must make a reasonable investigation of the claim. The employer and insurance carrier must also rely on the reason that they provide the injured worker as the reason for denying, delaying or terminating benefits. The employer and insurance carrier must also tell the injured worker why they are denying, delaying or terminating benefits at the time of that action.
An example of how the penalty section works is as follows: Suppose the injured worker hurt his or her back while lifting a heavy object at work. Further suppose that the doctor to whom the worker has been sent has indicated that the back injury is related to the work activity. If the employer and insurance carrier do not pay benefits because they indicate that they do not believe the injury happened at work, without having any support for this contention, penalty benefits should be awarded because there is nothing to support the view of the employer that this is not a work injury.
What Do I Do to Formally Start a Workers' Compensation Claim?
After you have notified the employer of your injury, but the employer has not paid benefits to which you think you are entitled, you have the right to file a petition with the Iowa Workers' Compensation Commissioner. A copy of the petition can be found at the Iowa Workers' Compensation Commissioner's website, which is found at http://www.iowaworkforce.org/wc/ . The petition can be found at the "Forms and Publications" link on the website.
The filing of the petition starts a formal legal process. Typically, after the petition is filed, a hearing is to be set within one year of the filing of the petition. Because this is a fairly complicated procedure, it is wise to consult an attorney if you wish to file a petition.
Can I be Fired if I Have Filed a Workers' Compensation Claim?
This is an area where there is a good deal of misinformation which can lead to confusion. The general answer is that you can be fired even if you have been injured at work. This is because Iowa is what is called an "at will employment" state, which means that an employer can fire an injured worker (or any worker for that matter) at their discretion.
There are situations in the workers' compensation setting where a worker has some protection, but these situations are fairly narrow. In Springer v. Weeks & Leo Co, Inc. , 429 N.W.2d 558 (Iowa 1988), the Iowa Supreme Court held that an employer's discharge of an employee simply because they had filed a workers' compensation claim was against public policy. The court allowed the injured worker to pursue a claim against the employer. The cases which have followed Springer have not been particularly favorable to injured workers', however. If the employer had reasons other than the workers compensation claim for the firing, generally a claim will not be successful. In the case of Ballalatak v. All Iowa Agriculture Assn., 781 N.W.2d 272 (Iowa 2010), the court held that the public policy exception did not protect a supervisor who advocated for the workers' compensation claims of other employees.
Recurring Issues
Despite the fact that the Iowa workers' compensation system is meant to be self-effectuating, as a practical matter there are many occasions where benefits are not paid when they are due, medical benefits are not provided, or benefits are not paid in a timely manner. The following issues occur with some regularity.
• Medical care is not provided, or when it is provided, it is inadequate to meet the needs of the injured worker.
• Conflicts between the injured worker and a nurse case manager (a person hired by the insurance company)
• Conflicts between the injured worker and a vocational consultant (a person hired by the insurance company to identify jobs the injured worker can allegedly perform)
• Conflicts between the workers' compensation carrier and the health insurance carrier over who is to pay bills.
• Weekly checks do not arrive in a timely fashion
• Problems have benefits started and continued in a timely fashion
• Improperly calculated weekly benefit rates
• Failure of the insurance carrier to pay appropriate benefits for an industrial disability claim
• Termination of an employee after filing a workers' compensation claim.
• Unpaid medical mileage benefits
• Issues involving the interplay of other benefit programs, including Social Security Disability, Medicare and Unemployment
Long Term Disability
Workers can be injured for a number of reasons - some of them related to work activities, and others not related to work. Iowa workers' compensation covers the situation where the injury arises out of and in the course of employment. In some cases, an employer may have a short and long term disability policy that covers workers' for non-work related injuries. A worker can also purchase a short and long term disability policy.
Typically, short and long term disability policies cover the situation where a worker has a condition or an injury that is not related to work. For example, if the worker suffers from cancer and cannot be at work because of the cancer, they may be covered by a short or long term disability policy.
The policies are something that has to be purchased, by either the employer or by the employee. The short term policy generally covers a short period (90-180 days) while the long term disability policy becomes effective after this period. Some long term disability policies are what are called "own occupation" policies, which means that during a set period (oftentimes two years), as long as the worker cannot perform the job they were performing at the time they became disabled, they are eligible under the policy. In other cases (and usually at the end of two years), policies provide long term disability payments only if the disabled worker cannot perform any job within that worker's training or experience.
Long term disability payments are generally between 60 and 66% of gross income. Unlike Iowa workers' compensation payments, these benefits are paid on a monthly basis. They often require periodic review by a doctor to substantiate that the worker continues to be disabled.
Long term disability policies are a form of contract, so the written documentation of the long term disability policy (the "Plan") generally governs whether a worker is eligible for benefits or not. These plans are often written so that it is difficult to obtain coverage because the insurance company has so much discretion in deciding whether a person is disabled. The plans can be confusing, and there many occasions when the worker does not have access to the plan, but only to a summary of the plan. If you have questions about long term disability, please call Neifert, Byrne and Ozga for a free consultation concerning your rights.We are your best option when it comes to seeking an iowa personal injury attorney. We focus on defending your rights when it comes to acting as your iowa personal injury attorney. There is simply no area of iowa workers comp we can't act as your iowa personal injury attorney in. This is because we feel iowa workers comp is the most important area of the law an iowa personal injury attorney can represent you in. Trust us as your iowa personal injury attorney when it comes to filling your iowa workers comp needs.
Phone: (515) 226-2117 • Toll-Free: (888) 926-2117 • Fax: (515)-226-2497 •
E-mail: MOzga@nbolawfirm.com