Iowa Workers' Compensation Lawyer Blog

People Who Helped Me Become a Lawyer

Thu, 16 May 2013 13:54:45 -0600

This list is obviously not going to be complete. There are hundreds of family members, friends, employers, co-workers, teachers and others who have made big contributions. I am just going to try to talk about the people who had the biggest roles in helping me.

BILL AND SHARON HAMEL. I was very fortunate to be born to the best parents in the world. I am fairly smart, and I definitely got that from both of them. They also taught me to work hard, try to do a good job, be kind and fair to people, and don't give up in the face of challenges and problems.

I don't have a 100% success rate on implementing these things my parents taught me, and I am entirely capable of making mistakes. However, all my weaknesses are things that I developed on my own.

My parents "indoctrinated" my positive qualities into me so that they are just part of me, and I can't really take any credit for them. My parents were and are tremendous role models and examples. For most of my life my Dad worked full time as a foreman at the Dubuque Packing Company and its successors; and also worked a second full time job running his own landscaping and a snow removal business. I know there were many times during the spring and summer when he was only getting a couple of hours a sleep a day.

Meanwhile, my Mom was raising six children that were born over a course of nine years. Mom made sure that all of us kids had chores and duties. However, her cooking, cleaning, shopping, laundry, nursing, educating and general child rearing never stopped. And she handled all the family finances and the billing and other paperwork for the landscaping business.

I have certainly been tired in my life, but I know I have never worked harder than my parents.

THE SISTERS OF THE VISITATION. I went to 1st grade through 8th grade at Nativity Grade School from 1966 to 1973. Back in those days many of the teachers were nuns, and the Order that taught at Nativity was the Sisters of the Visitation. A few of the nuns that I knew over the years were a little harsh. However, the majority were very nice. They all had very high expectations for us. I think the Sisters provided me a great education, and gave me another great example of people working hard to do a good job.

JIM OSTERBERGER. During my last four years at Nativity Jim Osterberger was a teacher, a coach, and anything else the school needed him to do. Very similar to the nuns, Jim had very high expectations for his students. Jim really encouraged me in school and helped give me more confidence in my abilities.

As a big bonus, Jim also got me into his Sunday morning basketball games when I returned to Dubuque from law school in 1986. I managed to keep playing until the accumulation of injuries knocked me out in 2000. The basketball itself was a ton of fun. Additionally, when I was a very young lawyer and still had some devil in me, knowing I had two hours of very competitive basketball at 8:00 a.m. on Sunday kept me out of trouble on Saturday night.

This gets me up to high school. I will pick up the list sometime down the road.

Overview of Mental Health Injuries in Iowa Workers' Compensation

Thu, 09 May 2013 14:49:58 -0600

MENTAL INJURIES ARE COMPENSATED AS INDUSTRIAL DISABILITY INJURIES. Under Iowa law mental injuries are compensable in the workers' compensation system. Mental injuries are unscheduled injuries. Therefore, the emphasis in figuring out the amount of damages is based on determining how much the mental injury reduces the injured worker's future earning capacity. (See here and here for longer discussions on how industrial disability injuries are valued).

AGGRAVATION OF PRE-EXISTING MENTAL HEALTH ISSUES. Similar to physical injuries, an aggravation of a pre-existing mental health issue is still compensable under Iowa law as long as the aggravation is substantial. As an example, look at the Iowa Supreme Court case of Cedar Rapids Community School District v. Pease, 807 N.W.2d 839 (Iowa 2011). In the Pease case the claimant did have a pre-existing history of depression. However, the Workers' Compensation Commissioner, and later the Iowa Supreme Court, found that the claimant's physical injury caused a substantial aggravation of her depression, and that the claimant was entitled to receive weekly benefits for this increase in her depression.

MENTAL-MENTAL INJURIES. Mental health injuries that arise without physical injury are frequently called "mental-mental" injuries. By contrast, mental injuries which are connected to a physical work injury are called "physical-mental" injuries. There are some important differences in how these two different types of mental injuries are treated. I will first talk about mental-mental injuries.

Village Credit Union v. Bryant, 819 N.W.2d 427 (Iowa App 2010) has a good discussion of what a claimant has to show to establish a mental-mental injury. It is not enough for the worker to show that the mental injury was actually caused by the employment. Additionally, the worker has to prove that the mental injury was caused by "workplace stress of greater magnitude than day-to-day mental stresses experienced by other workers employed in the same or similar jobs, regardless of their employer."

As a practical matter it is very difficult for a worker to succeed in a mental claim that does not have a related physical injury. An example of one of the few mental-mental claims that did succeed was the case of Humboldt Community Schools v. Fleming, 603 N.W.2d 759 (Iowa 1999). In the Humboldt Community Schools case the claimants were the surviving family of a school district superintendent that committed suicide. The superintendent was trying to implement a new curriculum which was unpopular in the community. The plaintiffs had testimony from other superintendents that had worked through similar controversial changes, and who explained that such a process was significantly worse than the regular day-to-day stresses of a school district superintendent.

The facts of the Village Credit Union case represent an exception to the difficult requirements for a mental-mental claim. In the Village Credit Union case the court of appeals cites to the rule that, "When a claim is based on a manifest happening of a sudden traumatic nature from an unexpected cause or unusual strain, the legal-causation test is met irrespective of the absence of similar stress on other employees." The injured worker In Village Credit Union succeeded with a mental-mental claim based on working as a teller in a credit union and being robbed twice. Although the teller was not physically injured, she did suffer substantial mental health problems as a result of these two robberies. Other examples of mental-mental cases which have succeeded under this "sudden trauma" exception include a hotel worker who had to clean a room after a suicide, and a counselor who suffered mental health problems of her own after one of her clients committed suicide.

PHYSICAL-MENTAL INJURIES. In situations where a worker suffers a physical injury, and then later develops mental health problems as a result of the physical injury, both the physical injury and the mental health injury are compensable as an Iowa workers' compensation injury. Where a worker has a physical-mental injury they only need to show that the physical work injury caused a new mental injury, or aggravated a pre-existing mental injury.

If the physical injury was a scheduled member injury, the results of the physical injury and the mental injury are combined together and assessed as an industrial disability claim. Therefore, as discussed in the first paragraph of this post, the emphasis in determining the value of the claim is the effect of the physical and mental injury on the worker's future earning capacity.

The case of Cedar Rapids Community School District v. Pease that I mentioned earlier is an example of a physical-mental injury. The worker initially suffered a right ankle injury at work. The right ankle injury in turn aggravated pre-existing problems that the claimant had with her other ankle, her low back, and depression. The Iowa Supreme Court ultimately decided that the ankle injury that occurred at work, and the aggravation of the claimant's pre-existing mental health problems rendered her unable to work and entitled her to permanent total disability benefits.

You can look here to see my April 25, 2013 blog post explaining how permanent total disability works in Iowa work comp.

How Is An Iowa Work Comp Lawyer Like An Auctioneer?

Thu, 02 May 2013 15:14:31 -0600

I don't have a lot of experience with auctions, but I have been involved in a handful, and I think they are fascinating. Recently I got to talk to a retired auctioneer about his career, and some of the more interesting auctions that he had been involved with. In our discussion he brought up a situation that I have started to see more frequently. The parents of my friends and relatives are regretfully beginning to pass away somewhat regularly. The surviving children frequently have a house to sort through and empty. I know a number of people who have rented dumpsters to help move the process along.

My retired auctioneer friend made the point that it is always worthwhile to call an auctioneer before you rent a dumpster. Auctioneers are willing to look over a house and its contents, and tell you whether they think an auction would be worthwhile. My auctioneer friend explained that while the surviving children might see worthless junk that is going to cost time and money to haul away, the auctioneer's experience allows him to figure out whether buyers will see valuable items they are willing to pay for.

After this conversation it struck me that injured workers are sort of like the surviving children looking at a house full of contents and workers' compensation lawyers are like auctioneers. The injured workers frequently aren't sure if their claim is worth fighting or how much it is worth. Workers' compensation lawyers are like auctioneers in that their training and experience allows them to figure out whether the case is worth pursuing.

The range of things a workers' compensation lawyer can do for you are almost limitless, but includes:

1. Figure out if your problem qualifies as a workers' compensation injury under Iowa law. (See here for a general explanation of what qualifies as a workers' compensation injury. See here for a post about when an aggravation of a pre-existing condition qualifies as a work injury).

2. Figure out whether you can bring a Second Injury Fund claim to increase your recovery. (See here for longer discussion of what is an Iowa Second Injury Fund claim and how it works).

3. Make sure you comply with the applicable time limits in an Iowa Workers' Compensation case. (See here for article explaining the Iowa Work Comp time limits).

4. Make sure that you are paid at the correct weekly rate. (See here for a post about how to correctly calculate the weekly rate).

5. Deal with medical care issues and disputes. (See here for an article about how medical care disputes can be handled under Iowa Workers' Compensation law).

6. Figure out the value of your case. (See here for overview discussion on how different kinds of Iowa Workers' Compensation injuries are valued. See here for more detail on how industrial disability claims are valued. See here for an article explaining what is necessary to qualify for a permanent total disability award).

7. Make sure that the right kinds of experts are hired for your case. (See here for an article on medical experts. See here for an article on vocational rehabilitation experts).

8. Work out the best type of settlement for your case. (See here for an overview on settlements. See here for a post on settlements involving Social Security Disability. See here for an article on using Medicare Set Asides in Iowa Work Comp settlements. See here for an article on the option of a settlement using a partial commutation. See here for an article on the option of using mediations to help resolve Iowa Work Comp cases).

9. Take your case to trial and work through the appeal process if necessary. (See here and here for an overview of the trial and appeal process in Iowa Workers' Compensation cases).

10. And this is just the tip of the iceberg, and I am not kidding. Every workers' compensation case is different and presents special factual and legal issues that need to be analyzed and dealt with.

Most Iowa Work Comp lawyers, including our law firm, will talk to you about your case without any charge or obligation. If you wonder whether your situation is worth pursuing, or if you have any other questions about your case, talk to a lawyer who regularly practices Iowa Workers' Compensation law.

Permanent Total Disability in Iowa Workers' Compensation

Thu, 25 Apr 2013 13:49:21 -0600

Under Iowa law if a worker has a severe enough injury they are entitled to receive what is called permanent total disability benefits. If a worker receives an award for permanent total disability benefits this means they are entitled to receive weekly benefits until they die. There is no limit to the number of weeks they can receive, and the payments do not stop when a worker turns 65 or any other age.

In order to receive a permanent total disability award the worker has to have an industrial disability type injury. This generally means an injury to the neck, shoulders, back, hips, or a mental injury. (See here for a longer explanation of the difference between scheduled injuries and industrial disability type injuries).

In many ways, the analysis for whether a worker qualifies for a permanent total disability is the same as how the extent of damages are looked at in a regular industrial disability case. The Workers' Compensation Judge will consider the reduction in the worker's earning capacity, as well as the worker's age, education, qualifications, experience, motivation, severity of injury, site of the injury, work restrictions, whether or not the employer kept the worker on as an employee, and whether the worker can do the type of work they have done during their career. (See here for a longer explanation of how industrial disability injuries are assessed and analyzed under the Iowa Workers' Compensation system).

Many of the Workers' Compensation Judges use some variation of the following standard to decide whether the severity of the injury is bad enough that the worker should be given permanent total disability:

1. The injury must completely disable the worker from performing the work that their experience, training, education, intelligence and physical capabilities would otherwise permit the employee to perform.

2. Total disability for Iowa workers' comp purposes does not mean that the worker is absolutely helpless.

3. The fact that the injured employee could perform some work despite their physical and educational limitations does not rule out a finding of permanent total disability.

Cedar Rapids Community School District v. Pease, 807 N.W.2d 839 (Iowa 2011) is a fairly recent Iowa Supreme Court case that discusses the twists and turns of a somewhat complicated case and eventually decides that the permanent total disability award that had been entered by the Iowa Workers' Compensation Commissioner was correct. Obviously every case is quite different, but this is a good example of the kinds of evidence and arguments each sides present in a potential permanent total disability case. The claimant worked with disabled children in the school district and transported them to various locations in the community in a school van. The Claimant's problem started out with a right ankle injury. A worker would generally not be entitled to permanent total disability from an ankle injury. However, the ankle injury in turn caused back problems and depression that created the possibility of a permanent total disability award. The case discusses at length the competing reports of the medical and vocational experts that provided evidence for each side. (See here for a longer explanation of the importance of good expert medical reports, and see here for a longer explanation of the importance of vocational rehabilitation reports).

The Supreme Court found that there was evidence supporting the Claimant's argument that she was permanently and totally disabled, and the defense argument that her injuries were not that severe. However, the Court accepted the conclusion of the Workers' Compensation Commissioner that it was a permanent total disability case. (See here for an explanation of the appeal process in Iowa Workers' Compensation cases, and the importance of the factual conclusions of the Iowa Workers' Compensation Commissioner).

An important factor in the case was that the school district had terminated Ms. Pease because they found that she could not perform her duties because of her injuries. Every workers' compensation case involving a termination does not lead to a permanent total disability award. However, the Iowa Workers' Compensation Commissioner and the Iowa Courts do consistently give higher damages to injured workers who are terminated from their jobs.

How Soon Can You Take an Iowa Work Comp Case to Trial?

Thu, 18 Apr 2013 14:47:05 -0600

At an Iowa workers' compensation trial I need to prove that my client's injuries arose out of and in the course of their employment, and I have to prove the extent of their damages, and how much money they are entitled to receive. (See here for more detail on what happens at a workers' compensation trial, and see here for more details on the factors that go into proving how much money an injured worker is entitled to receive). In order to be able to prove the amount of damages it is usually necessary to use one or more expert witnesses. (See here for more details on the use of medical experts, and see here for more details on the use of vocational rehabilitation experts).

In the Iowa workers' compensation system there are a lot of time deadlines relating to evidence. For example, you simply can't bring an expert to trial, or submit an expert report at trial without telling the other side. There are very specific time requirements about giving the other side notice of your intent to use experts, and providing the expert reports to opposing counsel a certain amount of time before trial.

In the rest of this blog post I will talk about how an injured worker's medical status and the expert disclosure rules impact how quickly a case can be brought to trial.

MAXIMUM MEDICAL IMPROVEMENT. The first key for assessing how soon you can go to trial is for the injured worker to heal to the point that they have reached what is frequently called maximum medical improvement. Maximum medical improvement does not mean that the injured worker is 100% cured, but rather that the worker has improved as much as can be expected and that whatever problems and limitations remain are going to be a permanent condition.
Once the injured worker has reached maximum medical improvement the defendants generally have a duty to obtain an impairment rating and make a voluntary commitment to pay the worker a reasonable amount of permanent partial disability benefits.

EXPERT TIME DEADLINES. Once I know that my client has reached maximum medical improvement and I have the defense impairment rating, I can then figure out the timing of everything else that has to be done to get the case ready for trial. There are several main factors that I take into account in figuring out when to actually file the workers' compensation petition:

1. Once a workers' compensation petition is filed this means that the case must come on for trial within 12 months of the petition filing date.

2. There are a lot of deadlines in Iowa workers' compensation law, but one of the keys is that 120 days before trial I need to file a certification of all of the experts that I will be using. This expert certification has to disclose:

a. The name of my expert.

b. The subject matter of my expert's expertise.

c. The qualifications of my expert.

d. A summary of my expert's opinions.

3. I also have to figure out how much time will be necessary to gather all of the underlying medical records, and schedule examinations or meetings between my experts and my client. I also have to factor in how long it will take my expert to write their report to allow me to serve it on defense counsel to satisfy the deadlines concerning revealing the expert opinions.

4. Additionally, in some cases I use multiple experts, and the work of one expert might rely on the work of another expert. Therefore, I need to make sure that there is enough time to get all the expert reports completed and served within the deadline requirements.

An example involving two interrelated experts would be a case in which I would use a medical expert to give opinions on causation, the impairment rating, and recommended work restrictions. Additionally, I might also use a vocational rehabilitation expert to help prove the extent of industrial disability. In order for the vocational rehabilitation expert to do their best job, he or she also needs to review and consider the report of our medical expert.

CONCLUSION. Preparation is one of the keys to success in Iowa Workers' Compensation. By planning out your strategy at the beginning, and taking all the steps to present a persuasive case at trial, you are in the best possible position to settle the claim on good terms or present a strong case at trial.

Using A Vocational Rehabilitation Expert To Help Prove Industrial Disability

Fri, 05 Apr 2013 12:26:32 -0600

As I have talked about in other posts, and at our website, there are two main categories of injuries in the Iowa Workers' Compensation System:

1. Scheduled Injuries.

2. Unscheduled-Industrial Disability Injuries. (Go here for longer explanation of the difference between these two types of injuries.)

The industrial disability injuries generally involve problems with the neck, shoulders, back, and hips. If you have one of these industrial disability type injuries the main question to determine how many weeks of benefits you are entitled to is how the injury affects your potential earning capacity in the competitive labor market. (Go here for a more in depth explanation of the factors that go into determining the extent of damages for an industrial disability type injury).

The Workers' Compensation Deputy Commissioners and the Workers' Compensation Commissioner are the final decision makers on the question of how much industrial disability you have suffered, and they are considered to be experts on this question.

There is also a real common sense aspect to determining how an injury will affect a worker's future ability to get a job and earn money in the competitive labor market.

Let's use the example of a 55 year old worker with a high school education, no computer skills, and a lifetime work history of manual labor in the construction field. Let's further assume that the worker suffers a back injury, and is given work restrictions limiting how much he can lift, limiting how much he can bend, and requiring him to take frequent breaks and to be able to alternate between lying down, sitting down, and standing.

Most of us would agree that for a person with this background that back injury is going to be a serious problem that is going to limit the worker's ability to get jobs and earn money in the future.

However, in some cases our law firm will also hire a vocational rehabilitation expert to analyze the case and provide a report or trial testimony about the amount of the loss of earning ability.

Part of the value of what a vocational rehabilitation expert can bring to the case is that they are able to use their knowledge of the specifics of what every potential job in the United States requires, and whether or not the injured worker can meet those job qualifications. Using the example that I was talking about above, here are some of the things that a vocational rehabilitation expert can do to help show the extent of the industrial disability.

1. The vocational rehabilitation expert can use the work restrictions to help figure out what types of jobs are simply going to be impossible for the injured worker. For example, all jobs are placed in broad categories of whether they are heavy jobs, medium jobs, light jobs, or sedentary jobs. In our example by looking at the lifting restrictions the vocational rehabilitation expert can explain that the worker is only capable of light duty or sedentary type work, and that he is no longer qualified to do medium level or heavy level work.

2. The vocational rehabilitation expert can also look at the skills that the injured worker has and further explain what types of jobs that the worker might be able to do, and what sorts of work that he is not going to be able to do. For a worker with limited education, and no computer skills or history of any type of office work, the vocational rehabilitation expert can give very specific fact based opinions about all of the types of jobs that the worker can qualify for.

3. The vocational rehabilitation expert can also give specific opinions talking about the length of time that would be required for potential retraining and the likelihood of whether the training can be successful.

4. The vocational rehabilitation expert can also explain that even though a worker might be able to perform many of the weightlifting requirements of light assembly work, the restrictions relating to limited bending, and the requirement that the worker be able to change positions would actually exclude them from that work.

5. A vocational rehabilitation expert can also talk about the studies and statistics that show that in many cases employers are not inclined to hire older workers who have work restrictions.

6. The vocational rehabilitation experts can also perform job surveys or make job placement efforts in the injured worker's local job market to show even more concretely the difficulty the injured worker faces in obtaining a job.

7. By working through all these steps, the vocational rehabilitation expert can potentially ultimately explain that an injured worker is disqualified from 90% of the jobs that are available in the United States, and that the jobs that the worker qualifies for pay less than his prior job, and that the injured worker is still going to have a hard time being hired.

All these opinions of a vocational rehabilitation expert can be helpful for the Workers' Compensation Deputies in determining the extent of the industrial disability, and how many weeks of benefits should be awarded to the injured worker.

Time Limits in Iowa Work Comp Cases

Wed, 27 Mar 2013 14:21:03 -0600

In Iowa workers' compensation cases there are two different sets of time limits that you have to comply with. First, if you are injured you need to give your employer notice of your injury within 90 days of the injury. Second, if you are an injured worker you also need to file a Workers' Compensation petition within either two years of the date of injury, or three years of the last payment of weekly benefits.

These time limits are somewhat like a shot clock in basketball. A shot after the clock has run out does not count. If an injured worker gives their notice of injury after the 90 day time limit, or files a petition after the time limit, the worker's claim may be denied, and the injured worker will not be entitled to receive any workers' compensation benefits.

NOTICE REQUIREMENTS. Iowa Code Section 85.23 sets out the requirements concerning notice. Basically the statute requires that an injured worker needs to give formal written notice of the injury within 90 days that complies with the statutory requirements unless the employer has "actual knowledge of notice of an injury within ninety days" from the date of injury. The requirements of the written notice are set out in Iowa Code Section 85.24.

The option of "actual knowledge" can be satisfied if someone involved in management such as a foreman is aware that there was a work injury.

STATUTE OF LIMITATION REQUIREMENTS. In addition to the notice requirement, if a worker wants to pursue benefits he also needs to file a Workers' Compensation petition within certain time limits. "Statute of limitations" is just the lawyer way of describing the time limit for filing a petition to start the process of eventually having a trial.

Iowa Code Section 85.26 sets out the Iowa requirements concerning the statute of limitations. There are two different time limits for filing a petition depending on the facts of the case. If the employee was never paid weekly benefits he needs to file his petition within two years of the date of injury.

Alternately, if the worker was paid weekly workers' compensation benefits for the claim, then the time limit for filing a petition is three years from the date of the last payment of weekly workers' compensation benefits.

EXCEPTIONS AND EXTENSIONS TO THE NOTICE AND STATUTE OF LIMITATION REQUIREMENTS. There are a number of special rules that can give the worker additional time for giving notice or filing a petition beyond the standard time limits set out above. For example, an injured worker might think that an injury was not serious and that it would clear up on its own. Under the right circumstances in a situation like this the injury date that starts all of the time limits might be interpreted to be the date when the employee became aware that his injury was serious. By delaying what is considered to be the injury date the worker receives additional time to give notice and file a petition.

There are also additional exceptions that can extend the time limits.

However, it is a dangerous idea for an injured worker to rely on an exception for extending the time limits. If a worker is hurt on the job, he should be sure to give notice of the injury within 90 days of the injury, or as soon as the worker is aware that he is hurt, or makes the connection that the problem might be work related.

Similarly, the worker needs to keep in mind the time limits for filing an Iowa work comp petition.

It is always a good idea to talk to a lawyer early on to review the specifics of your case, and figure out the time limits that apply in your case, and the specific steps and amount of time necessary to be able to comply with the time limits.

What Is The Difference Between An Employee And An Independent Contractor?

Wed, 20 Mar 2013 15:50:47 -0600

Under Iowa law an employer must provide workers' compensation insurance for all of its employees. However, an employer is not required to provide workers' compensation insurance for an independent contractor.

The line between who is an employee who is entitled to work comp benefits, and who is an independent contractor who will not receive workers' compensation benefits can be very hard to determine.

In the 1931 case of Mallinger v. Webster City Oil Co. the Iowa Supreme Court came up with the test for determining who is an employee and who is an independent contractor that is still followed today. The test requires looking at eight factors, and no single factor is necessarily controlling.

In the rest of this post I am going to talk about the eight factors. In discussing each of the elements I am going to use the hypothetical of an employer who is a home builder, and have the potential employee or independent contractor be a roofer.

Here are the eight factors of the test and how different facts would be interpreted in our hypothetical of a home builder and a roofer:

1. WHETHER THERE IS A CONTRACT TO PERFORM THE ROOFING JOB FOR A FIXED PRICE. If the roofer has agreed to perform the roofing job for a set price that would increase the probability that the roofer will be treated as an independent contractor.

2. WHETHER THE ROOFER HAS AN INDEPENDENT BUSINESS. If the roofer does roofing for a large number of different home builders that will increase the probability that the roofer will be treated as an independent contractor.

3. WHETHER THE ROOFER EMPLOYS ASSISTANTS WHO HE SUPERVISES. If the roofer has his own employees who he supervises and directs this will increase the probability that the roofer will be treated as an independent contractor.

4. THE OBLIGATION OF THE ROOFER TO PROVIDE HIS OWN TOOLS AND MATERIALS. To the extent that the roofer has his own roofing tools, and provides the materials such as the shingles, this will increase the probability that the roofer will be treated as an independent contractor.

To the extent that the home builder provides the tools and the shingles this will increase the likelihood that the roofer will be treated as an employee who is entitled to receive work comp benefits.

5. WHETHER THE ROOFER HAS THE RIGHT TO CONTROL THE PROGRESS OF THE WORK, EXCEPT AS TO THE FINAL RESULTS. The home builder will always have the right of final approval over the roofing job. However, if the roofer has complete discretion in how to do the roofing job that will increase the probability that he will be treated as an independent contractor.

To the extent that the home builder can give direction on how the roofing work is done (and not just approve or reject the final work) that increases the probability that the roofer will be labeled an employee.

6. THE LENGTH OF TIME THE ROOFER PUTS ON ROOFS FOR THE HOME BUILDER. If the roofer only does one roof for the home builder that increases the probability that the roofer will be treated as an independent contractor.

By contrast, if the roofer spends an entire season putting on roofs for the home builder that will increase the probability that the roofer will be deemed to be an employee.

7. WHETHER THE ROOFER IS PAID BY THE HOUR OR BY THE JOB. If the roofer is paid a flat amount based on the job, that will increase the probability that he will be found to be an independent contractor.

If the roofer is paid by the hour that will increase the probability that he will be found to be an employee.

8. WHETHER THE ROOFING WORK IS PART OF THE REGULAR BUSINESS OF THE HOME BUILDER. Roofing would probably be considered to be part of the regular business of a home builder, so this factor would probably weigh in favor of the conclusion that the roofer was an employee.

By contrast, if the home builder hired someone to install a pool, and that was not a regular part of the homes that the builder constructed, then this element of the test would increase the probability that the pool builder would be found to be an independent contractor.

CONCLUSION. Figuring out whether an injured worker is an independent contractor who is not entitled to workers' compensation benefits, or an employee who is entitled to work comp benefits can be difficult. If you are in this gray area and you are hurt on the job you should talk to a lawyer to help determine whether you are entitled to receive Iowa workers' compensation benefits.

Who is Not Covered Under Iowa Workers' Compensation Law?

Wed, 13 Mar 2013 11:59:59 -0600

Today I am going to write about some of the more common situations where an injured worker may not qualify to receive Iowa work comp benefits. In all of these areas the specific facts of the case are extremely important, and if you fall into any of these situations you should talk to a lawyer to help figure out whether you may qualify for Iowa Workers' Compensation benefits, or another remedy.

OWNER-OPERATORS OF TRUCKS. Truck drivers who are regular employees of a trucking company are covered by workers' compensation law. (There are some very complicated issues concerning the correct state where a truck driver work comp case should be filed, and I will talk about that issue down the road).

However, a truck driver who functions as an owner-operator for a trucking company may not be covered with Iowa workers' compensation benefits. The controlling statute on this issue is Iowa Code Section 85.61(.11)(c)(3) The statute provides that if all of the following conditions are substantially present then the owner-operator will not be considered to be an employee who is entitled to workers' compensation benefits:

1. The owner-operator is responsible for the maintenance of the vehicle.

2. The owner-operator bears the principal burden of paying for fuel, repairs, supplies, collision insurance, and the personal expenses of the driver while on the road.

3. The owner-operator is responsible for supplying the driver or drivers for the truck.

4. The owner-operator's compensation is not based on the hours or time expended, but rather on a percentage of any schedule of rates or lawfully published tariff.

5. The owner-operator is in charge of determining the details and means of performing the services in conformance with the regulatory requirements, operating procedures of the carrier and specifications of the shipper.

6. The owner-operator enters into a contract which specifies that he is an independent contractor and not an employee of the truck company.

If you drive truck as an owner-operator you should consider purchasing your own workers' compensation insurance if at all possible. Many truck driving jobs have a very physical component and the possibility of a serious injury is significant.

CASUAL EMPLOYEES. Iowa law also provides that a worker whose employment is purely casual and not for the purpose of the employer's trade or business is generally not covered by workers' compensation insurance. However, a frequent exception to this rule is when an employer, such as a warehouse, might hire a number of workers for a short-term basis to help with a spike in business. These temporary workers would not be considered casual employees because they are engaged in the warehouse's regular business, and therefore would be entitled to workers' compensation coverage.

AGRICULTURAL EMPLOYEES. The law relating to when agricultural employees are not covered by workers' compensation insurance is particularly complex. However, as a general matter a non-family farm employee is covered if the farmer has a total annual payroll of over $2,500.

EMPLOYERS WHO DO NOT PURCHASE WORKERS' COMPENSATION COVERAGE. Obviously, if an employer does not purchase workers' compensation insurance, there is no way for an employee to receive medical and weekly benefits from an insurance company. The injured worker does have alternate remedies available against the employer, and if you end up injured while working for an uninsured employer, you should definitely talk to a lawyer about your options.

Additionally, if you work for an employer who does not carry workers' compensation insurance you can report the employer to the Workers' Compensation Commissioner. The Workers' Compensation Commissioner is trying hard to enforce the law requiring all Iowa employers to purchase workers' compensation insurance.

Enforcement of the law requiring employers to have such insurance has two main benefits. First, it obviously helps a worker who is injured on the job. Second, it helps level the playing field for the employers who follow the law and incur the additional expense of purchasing workers' compensation insurance. All these law abiding employers are at a disadvantage competing against the employers who break the law and avoid the expense of obtaining workers' compensation insurance.

INDEPENDENT CONTRACTORS. Under Iowa law an employer is not required to provide workers' compensation benefits for an independent contractor. As a very general matter the difference between being an employee who gets benefits and an independent contractor who does not get benefits is that the independent contractor is considered to be a separate business or entity from the employer.

The details of how this line is drawn between employees and independent contractors are very complex, and I will talk about that in my next post.

Mediations in Iowa Work Comp Cases

Wed, 06 Mar 2013 15:41:42 -0600

Today I am going to write about the option of using a mediation to help try to settle an Iowa Workers' Compensation case.

WHAT IS A MEDIATION? A mediation is a procedure to try to settle a case. Typically, the injured worker, a representative of the insurance company, the lawyers for each side, and a mediator meet to discuss settlement.

A mediation is not a trial. Although the parties generally talk about the facts and law, no evidence is presented.

In order to resolve a case in a mediation all the parties have to agree to the final settlement terms. Neither side can be forced to settle the case. One or both sides can end the mediation.

One of the keys to a mediation is the mediator. A mediator is typically a lawyer who has gone through special settlement training, and who has experience in the type of case that the parties have.

The mediator is paid to provide his service. The parties generally split the cost of the mediator.

HOW IS A MEDIATION CONDUCTED? Prior to the mediation all the parties have to agree to go through the mediation process, who the mediator will be, and when and where the mediation will be conducted.

Prior to the mediation each side generally sends the mediator a written packet explaining their views on the case. Generally, the parties do not share the mediation packet directly with each other.

The mediation can be held at the law offices of the claimant's attorney, the defense attorney, the offices of the mediator, or some other agreed location such as a hotel.

In most mediations the parties start the process in the same room. The mediator usually gives a talk about the risks and dangers of proceeding to trial, and the positives for each side in reaching a compromise. In this initial joint meeting the parties might give a presentation on their views of the case, but frequently this is not done.

After that initial meeting the parties will split up and be in separate rooms for the rest of the mediation process.

The mediator usually begins by meeting with each party, and reviewing the facts and applicable law in the case to make sure he understands each party's position.

After these initial meetings with each side the mediator begins going back and forth between the parties. In these back and forth meetings the mediator presents settlement offers and counteroffers, and gives the parties his assessment of the case, and his advice on how the parties should move forward in the settlement discussions.

WHEN DOES A MEDIATION WORK BEST? I think there are two main components to giving a mediation the best chance to work. First, is the timing of the mediation.

Sometimes a mediation that is held early on in the litigation process can work. However, I find that mediations work best later on in the process. It is very helpful if the parties have done most of the discovery and case preparation so that each party knows the strengths and weaknesses of each side.

It is also helpful to have a trial date coming up fairly soon after the mediation so that the parties know that if they don't get the case worked out at mediation they will soon have to deal with the results of a trial.

The second big factor is to try to make sure that all of the decision makers actually attend the mediation. On the Claimant's side, the injured worker (their spouse if they are married), and the Claimant's attorney all attend. Therefore, the claimants almost always have all the necessary people to make decisions about settlement.

On the defense side, they will always have defense counsel, usually an employer representative, and the adjuster on the file. However, especially in bigger cases, the adjuster may only have limited authority, and a supervisor in the insurance company actually needs to be consulted after a certain point in the discussions.

Mediation can work by having the defendants talk to the supervisor with the settlement authority by telephone. However, I've always found it works much better if the insurance company supervisor is actually attending the mediation.

WHY DO MEDIATIONS SO FREQUENTLY LEAD TO A SETTLEMENT OF THE CASE? You might ask yourself why go to the inconvenience and expense of a mediation, and instead just have the attorneys communicate back and forth. It certainly is true that many cases are settled without mediation. However, in difficult cases and larger cases a mediation can be very helpful.

First, having a mediator helps remove some of the competitive quality that exists when the lawyers and parties are dealing directly with each other. The mediator helps keep the focus on what is the best way to fairly resolve the case, rather than annoyances and disagreements that the two sides might have with each other.

Second, I think there is a lot of value in having all of the decision makers together in the same place concentrating only on the case being mediated. The alternative of having the lawyers discussing the case and making offers back and forth through phone calls, letters and emails is much slower. In each step of that traditional process the lawyer has to talk to their clients, who in turn have to think about the proposals. Additionally, in each step along the way the lawyers and the clients all have other responsibilities and tasks that are distracting them and adding to the delay.

Finally, as I mentioned above I think that it is helpful to both sides to have a trial date fairly close in the future. This helps everyone really focus on the strengths and weaknesses of their case and the possible range of trial results.

Mediations don't result in a settlement every time. However, I find that if the parties go into the mediations with an informed view of their case, that the vast majority of cases can be settled at mediation.

An Overview of the Trial and Appeal Process in Iowa Workers' Compensation Cases

Thu, 28 Feb 2013 16:11:08 -0600

Today I am going to write about the trial and appeal process in Iowa work comp cases. In doing this I am going to talk about how long the various steps take, and the main issues at each stage.

TRIAL LEVEL. This is the first stage in the process. Take a look at my blog post of December 28, 2012 which gives an overview of what goes on in an Iowa Workers' Compensation trial.

After the trial, and depending on the complexity of the case, and the workload of the Deputy Workers' Compensation Commissioner who heard the case, an arbitration decision will usually be issued within one to four months after the trial date. The decision will explain which side wins and what benefits the worker is entitled to receive.

In deciding the case at this stage the Deputy Commissioner is free to make whatever decisions they think is correct based on the applicable law and the facts submitted at trial.

REHEARING LEVEL. If one or both of the parties thinks that the Deputy Commissioner who issued the arbitration decision overlooked an issue or made an obvious mistake that can be easily corrected they can file what is called a Motion for Rehearing. A Motion for Rehearing asks the Deputy Commissioner to look at a specific part of their own arbitration decision and correct it. The rehearing rules are set up so that this process moves relatively quickly, and it is usually decided within 40 days of when the trial decision was issued.

APPEAL TO THE IOWA WORKERS' COMPENSATION COMMISSIONER. If either party is unhappy with the trial decision they can appeal the case to the Workers' Compensation Commissioner.

Generally, no new evidence is allowed in the appeal, and the witnesses do not testify again. Instead, the Workers' Compensation Commissioner decides the appeal based on the exhibits that were submitted at the trial level and a written transcript of the testimony that was given at the trial level. Additionally, the parties submit written briefs explaining why they think they should win.

The briefs are submitted under a structured order and time schedule. There are usually three total briefs. The order of the briefs is that the losing party goes first, the winning party responds, and the losing party then gets to submit the final brief.

In most cases there are numerous factual disputes. For example, the parties might disagree whether a worker developed a shoulder injury from repetitive factory work, or whether it was because of a non-work factor. Each side would usually present evidence supporting their position including expert medical opinions.

A crucial part of the appeal process is that the Workers' Compensation Commissioner does not have to follow or agree with the findings of the Deputy Commissioner who issued the first decision. The Workers' Compensation Commissioner can decide all of the factual disputes however he or she sees fit and the factual findings of the Workers' Compensation Commissioner will generally control in all of the following appeal stages.

Therefore, in many ways the appeal decision of the Workers' Compensation Commissioner is even more important than the trial decision of the Deputy Commissioner.

It generally takes about a year from the time of the trial level decision to the issuing of the appeal decision from the Workers' Compensation Commissioner.

APPEAL TO THE DISTRICT COURT. If either party is unhappy with the appeal decision of the Workers' Compensation Commissioner the next step in the process is to appeal to the District Court. In Iowa each of the 99 counties has a courthouse in the county seat. The District Court is this county level of the court system.

At this level the District Court is deciding the case based on the evidence previously submitted. The parties again file briefs to argue their case.

Starting at this level of the appeal process the reviewing court can change the lower decision if they think there was a legal error, but the reviewing court is no longer free to reach different factual conclusions as long as there is substantial evidence to support the factual findings of the Workers' Compensation Commissioner.

An example of a legal dispute would be the burden of proof. In Iowa Workers' Compensation cases the worker has the burden of proof to show their injury and extent of damages. The injured worker has to carry their burden of proof by a preponderance of the evidence which is often described as 51% of the evidence. If the Workers' Compensation Commissioner said that he was deciding the case based on the worker only having to show that the evidence was 50% in favor of each party that would be a legal error that the reviewing courts could correct.

By contrast, a factual issue would be something like the dispute I mentioned above about whether a shoulder injury was caused by work or non-work activities. Each side presumably presented the evidence that favored their interpretation, and the Workers' Compensation Commissioner decided which position was correct. The District Court (and the higher reviewing courts) might feel differently than the Workers' Compensation Commissioner, but as long as the Commissioner's decision was at least a reasonable conclusion, it will not be second guessed.

The District Court appeal process usually takes about six to nine months.

APPEAL TO THE IOWA COURT OF APPEALS. If one side is unhappy with the District Court decision, the next step is to appeal to the appellate courts in Des Moines. At this stage I am going to simplify the actual process a little bit. When a party appeals from the District Court level the appeal is technically to the Iowa Supreme Court. All appeals to the Iowa Supreme Court are initially screened and either assigned to the Iowa Court of Appeals or to the Iowa Supreme Court.

The Iowa Supreme Court usually only takes the appeals that raise new or important issues. All the other appeals that can be resolved by applying established law are sent to the Iowa Court of Appeals. As a general matter most workers' compensation appeals end up being directed to the Iowa Court of Appeals.

Again at the Iowa Court of Appeals' level no new evidence is permitted, and the case is decided based on the evidence previously presented. Again, the legal conclusions of the lower level deciders can be changed, but the factual findings of the Iowa Workers' Compensation Commissioner will be followed.

An appeal to the Iowa Court of Appeals usually takes about six to nine months.

APPLICATION FOR FURTHER REVIEW TO THE IOWA SUPREME COURT. If one of the parties feels that the Iowa Court of Appeals was incorrect, they can ask for the Iowa Supreme Court to review the Court of Appeals decision. The Supreme Court will generally deny about 90% of the requests for further review without substantial analysis. Of the remaining 10% of the cases that the Supreme Court looks at closely, it usually ends up reversing the Court of Appeals in the majority.

CONCLUSION. The nature of Iowa work comp litigation leads to a lot of appeals. In 2011 a total of 640 Iowa Workers' Compensation cases were tried at the arbitration level in front of Deputy Workers' Compensation Commissioners. Meanwhile, 339 cases were appealed to the Workers' Compensation Commissioner.

I am not aware of any statistics on the number of appeals beyond the Workers' Compensation Commissioner level, but my experience is that there are fewer appeals at each of the next levels. However, it is clear that appeals are a big part of Iowa Workers' Compensation litigation, and it is important that lawyers in this area have skills in both trying cases, and writing appellate briefs.

Partial Commutations in Iowa Work Comp Cases

Wed, 20 Feb 2013 14:49:48 -0600

There are a lot of dangers in Iowa Workers' Compensation cases that can trip you up if you are not familiar with the system. There are also some nice opportunities that you can miss if you don't regularly deal with the system.

Today I am going to write about one of those lesser known options that can be very beneficial in the right case: the partial commutation.

WHAT IS A PARTIAL COMMUTATION? A partial commutation allows an injured worker to receive a single lump sum payment rather than a stream of weekly payments; and also preserves the worker's right to lifetime medical care for the work injury.

The possibility of a partial commutation comes in to play after a worker has settled his case or won an award at trial. Partial commutations are generally only used when a worker has received a large settlement or award that entitles the worker to receive hundreds of weeks of future permanent partial disability benefits.

For instance, a worker who is entitled to receive 300 weekly checks for $500, could use the partial commutation procedure to receive the present value of those payments. Under the current discount rate being used by the Iowa Workers' Compensation Commission, those 300 weeks of $500 would entitle the worker to receive a lump sum payment of $141,042.50.

WHAT DO YOU HAVE TO SHOW TO QUALIFY FOR A PARTIAL COMMUTATION? Dameron v. Neumann Brothers, Inc., 339 N.W.2d 160 (Iowa 1993) is one of the big Iowa cases that established a lot of the commutation rules. Dameron explains that the decision of whether to allow a partial commutation is based on deciding what is in the best interest of the claimant, which in turn means looking at:

1. The worker's age, education, mental and physical condition, and actual life expectancy (as contrasted with information provided by actuarial tables).

2. The worker's family circumstances, living arrangements, and responsibilities to dependents.

3. The worker's financial condition, including all sources of income, debts, and living expenses.

4. The reasonableness of the worker's plan for investing the lump sum proceeds and the worker's ability to manage invested funds or arrange for management by others (for example, by a trustee or conservator).

Determining the best interest of the claimant requires weighing the pros and cons of converting the right to receive weekly payments into a lump sum. The worker's preference and the benefit to the worker of receiving a lump sum should be weighed against the potential detriments that would result if the worker invested unwisely, spent foolishly, or otherwise wasted the funds.

The Dameron analysis puts the emphasis on what is in the best interest of the worker, and not what is in the best interest of the employer or insurance carrier, unless the defendants can show financial hardship if they are required to make a lump sum payment rather than weekly payments.

Additionally, in numerous decisions the Iowa Workers' Compensation Commission has found that it is reasonable to commute an award to an older worker or an ill worker that might not live out their life expectancy in order to assure that the worker receives the "full value" of their disability award by passing on the lump sum to their survivors. This is important because if a worker does not commute his settlement or award into a lump sum, and dies while he is still owed weekly benefits, then the right to receive additional weekly benefits dies with the worker, and his family does not receive the balance still owed.

As a practical matter these legal standards mean that if a worker's financial situation is generally solid, and they have a reasonable plan for how to use a lump sum payment, the commutation request will be approved.

The commutation requests that tend not to be approved involve workers who have a poor history of taking care of their finances, and have risky plans for what they will do if they can receive a lump sum payment. In these situations the Workers' Compensation Commissioner and the Courts generally feel that the workers are better off to get a definite amount of money each week to take care of their living expenses, rather than a lump sum that can be lost, and which leaves the injured worker without the security of a weekly check.

On January 24, 2013 the Iowa Court of Appeals issued a decision in the case of Pilgrim's Pride Corporation and Zurich North American v. Johnie M. Eakins. This case is a good example of some of the arguments that the competing parties make in a partial commutation dispute. Although the defendants raised some potential concerns about whether the commutation was in the best interest of the injured worker, the Court deferred to the Iowa Workers' Compensation Commissioner's decision that on balance the benefits of the commutation outweighed the potential dangers.

CONCLUSION. A partial commutation is not right in every situation, and not everyone may qualify. However, it is an option to keep in mind if you have a serious injury that is going to lead to a substantial settlement or award.

The Use of Medicare Set Asides in Iowa Workers' Compensation Settlements

Wed, 13 Feb 2013 15:48:47 -0600

INTRODUCTION. Sometimes a worker hurt on the job will have both an Iowa Workers' Compensation claim, and will also be eligible to receive Social Security disability payments and/or Medicare health insurance coverage. In this post I am going to talk about how Medicare Set Asides and Iowa Workers' Compensation settlements interact. In some cases the injured worker may receive an award that provides for future medical care, or he may settle his case on an open file basis so that the workers' compensation insurance carrier remains responsible for future medical care of the work injury. If your case can be resolved on this basis there is no need to obtain or worry about a Medicare Set Aside.

However, in other cases the best settlement option might include the worker giving up their right to future medical care paid for by the workers' compensation insurance carrier. If in a settlement with "closed" medical the injured worker is already receiving Medicare coverage, or has a good chance to receive Medicare coverage in the future, then the settlement needs to include setting aside a sum of money to pay for the future medical care relating to the work injury. This sum of money for future medical care is called a Medicare Set Aside.

FIRST CAUTION. The development of the Medicare Set Aside law and procedures is relatively new. Additionally, the rules and procedures are both uncertain and in a state of flux. Small variations in the facts of each case can also lead to very different results. This is all a very long way of saying that you need to be extra careful if you become involved in Medicare Set Aside issues. In this post I am only giving a very simple overview of the current state of the law and procedures.

WHAT HAPPENED IN THE PAST THAT LED TO THE REQUIREMENTS FOR MEDICARE SET ASIDES? I find that it helps people understand Medicare Set Asides better by learning a little bit about how things were handled prior to the Medicare Set Aside requirements. In the past the injured workers and the defendants sometimes agreed to settlements in which the worker was paid a large amount of cash, but the defendant's duty to provide future medical care was given up or extinguished. Frequently the workers that were involved in these settlements ended up receiving Medicare health insurance coverage and Medicare paid for the medical care that had actually been caused by a work injury.

Eventually, Medicare discovered that these kinds of settlements were happening, and that Medicare (and in effect all taxpayers) were paying for medical care for work injuries that more appropriately should have been paid for by the employers and workers' compensation insurance carriers.

Therefore, Medicare set up rules that require that if a worker and the defendants are going to release the defendants from having to pay for future medical care, and the worker is on Medicare or likely to be on Medicare in the near future, then the settlement also has to provide a procedure and mechanism for paying for the future medical care so that Medicare will not have to.

WHAT IS A MEDICARE SET ASIDE? A Medicare Set Aside is a special account of money funded by the workers' compensation defendants designed to pay for all future medical care that the worker will need for the rest of their life relating to the work injury.

Medicare has very detailed rules about how to calculate how much money should be put in the Medicare Set Aside.

WHEN DO YOU NEED A MEDICARE SET ASIDE? As a very general matter if you are settling a workers' compensation case and "closing" your right to receive future medical care from the work comp defendants, and there is a risk that you may end up on Medicare in the future and need treatment for your work injury, then you potentially need a Medicare Set Aside.

There are two situations in which an injured worker settling his workers' compensation case and giving up his right to future medical care from the defendants definitely needs a Medicare Set Aside:

1. If the injured worker is already Medicare eligible, and the total settlement value is greater than $25,000.

2. If there is a reasonable expectation that the injured worker will be eligible for Medicare within 30 months of the date of settlement; and the total settlement value exceeds $250,000.

WHY DO YOU NEED A MEDICARE SET ASIDE? If an injured worker gives up their right to future medical care as part of their workers' compensation settlement and ends up on Medicare, then Medicare is going to refuse to pay for any medical care that was caused by the work injury. In other words, if you give up your right to future medical care as part of your work comp settlement, you need to have a Medicare Set Aside account to pay for any future medical care because Medicare is not going to pay.

HOW DO YOU CREATE A MEDICARE SET ASIDE? The requirements relating to designing, submitting, and getting a Medicare Set Aside approved are very complex. Therefore, in most cases it is necessary to hire a company that regularly consults in Medicare Set Asides to perform the necessary analysis and handle all the paperwork.

Once the Medicare Set Aside account is created it can be funded by the defendants in several different ways. Sometimes the parties agree that the Medicare Set Aside account will be funded by a single lump sum paid in at the time settlement is approved. In other situations the parties may agree that the defendants will fund the Medicare Set Aside account by multiple payments made over a period of time.

SECOND CAUTION. The Medicare Set Aside area is so detailed and difficult that I am putting two cautions in this post. If you have a work injury where the issue of a Medicare Set Aside has come up you should not try to work out the settlement on your own. You need to talk to lawyers that are experienced in dealing with Medicare Set Asides.

Iowa Work Comp Settlements Involving Social Security Disability

Fri, 01 Feb 2013 15:06:47 -0600

If you have an Iowa workers' compensation case that involves a serious injury, you may also qualify to receive Social Security Disability benefits. In this post I am going to talk about some of the issues and options that come up when you receive both workers' compensation and Social Security Disability benefits.

One of the first factors to keep in mind is that if the combination of your Social Security disability benefits and your workers' compensation benefits is too high, then your Social Security disability benefits will be reduced. This is frequently called the Social Security offset.

The rule is that if the total amount of the Social Security benefits and the workers' compensation benefits exceeds 80% of your "average current earnings," then your Social Security disability benefits will be reduced to come down to this 80% level. Your "average current earnings" is the highest of your average monthly earnings during the highest five years in a row, or the average monthly earnings based on a single calendar year of highest earnings within five years of your disability. See here for a longer explanation of the rule.

Let me talk about an example from one of my recent cases to try to make this clearer. In that case the injured worker had a good job and his "average current earnings", worked out to be about $4,500 per month.

The first step in the analysis is that 80% of $4,500 equals $3,600. Therefore, the worker could receive a total of $3,600 of workers' compensation benefits and Social Security disability benefits per month without being subject to the offset. If the combined total was greater than $3,600 per month, then the Social Security disability benefits would be reduced to bring the total down to $3,600.

In the example my client had a work comp rate of about $640.00 per week which worked out to a monthly rate of $2,773.33 per month. An important step in the analysis is that in calculating the Social Security disability offset the worker is entitled to reduce his workers' compensation benefits by the amount he pays for legal fees and expenses. In this example that meant that the worker's net monthly workers' compensation benefit worked out to be approximately $1,848.89.

The worker's monthly Social Security disability payment was about $1,750 per month. Therefore, the total of the monthly Social Security disability and the monthly net workers' compensation benefits totaled $3,598.89. This total of $3,598.89 is just below the $3,600 level which is 80% of the worker's "average current earnings." Therefore, the monthly Social Security disability payments were not reduced at all by the work comp payments.

An important point to keep in mind is that workers with lower earnings than the example discussed above generally end up having a significant reduction of their Social Security disability payments if they also receive work comp benefits. However, every case is different and the specific details have to be analyzed very carefully.

If you are receiving both Social Security disability benefits and workers' compensation benefits you also have another option which will generally allow you to receive 100% of your Social Security benefits, and receive a single lump sum payment as an alternative to receiving weekly workers' compensation payments. The procedure is to settle the workers' compensation case with a compromise settlement, and add special Social Security disability language.

Working off the example discussed above, the worker was 60 years old and had received a permanent total disability award which entitled him to receive weekly benefits for the rest of his life. Under the Iowa workers' compensation life expectancy tables, a 60 year old worker would be expected to live another 1,144 weeks or 22 years.

The worker's life expectancy of 1,144 weeks at his workers' compensation rate of $640 would result in total payments of $732,160. However, those payments would be paid out weekly over the course of 22 years, and the present value of the payments is worth less than $732,000. Therefore, the parties sometimes work out an agreement to pay an immediate lump sum amount such as $650,000 rather than 1,144 weekly payments of $640 each.

Generally, if a worker received a lump sum payment of $650,000, that would make him ineligible to receive Social Security disability benefits. However, by using an Iowa compromise settlement with Social Security language the settlement amount can be prorated over the worker's life expectancy for purposes of calculating the offset. This generally allows the worker to continue to receive his full monthly Social Security disability payment, and also receive the lump sum payment in replacement for his weekly workers' compensation benefits.

This explanation of the interaction of workers' compensation benefits and Social Security disability benefits really just hits the high points, and is an illustration of what can be done in certain cases. The devil is in the details, and no injured worker should try to work out this type of settlement without the advice and help of an experienced lawyer.

Additionally, in big injury cases like this it is also very important to carefully address future medical care. I will talk about the future medical care issues in my next post.

An Overview of Settlements and Awards in Iowa Work Comp

Fri, 25 Jan 2013 15:06:14 -0600

Under Iowa Workers' Compensation law there are many different types of settlements. In this post I am going to give an introduction and overview of the main categories of settlements. In a later post I will get more into the pros and cons of the different kinds of settlements, and which types of settlements fit best with which types of cases.

I think the best way to start explaining the different kinds of settlements is to first talk about the results if you take a workers' compensation claim to trial and win and receive an award. You can then see how the different types of settlement compare to a trial award.

Award from trial. If you take your case to trial and win, the award from that trial is going to have three main valuable components. First, there will be an award for a specific amount of weekly cash benefits. Second, the award will entitle the worker to lifetime medical benefits relating to the work injury. Third, the award gives the injured worker a right to bring a review reopening claim if the injury gets worse within three years of the last payment of benefits.

Here is an example of the value of a review-reopening claim. A worker might suffer a back injury and end up receiving a 25% industrial disability award that entitles the worker to 125 weeks of permanent partial disability benefits. Over time the back condition might worsen so that the worker's industrial disability increases from 25% to 50%. As long as the worker brings the review-reopening action within three years of the date of the last payment of benefits on the original injury, he is entitled to receive compensation for the increased disability. Under this example the worker would be entitled to another 125 weeks of permanent partial disability benefits in his review-reopening action.

Note: You can click here to get more background on the work comp terms and concepts used in this post.

I will now talk about the main categories of settlements, and how they all have different ways of handling the three award components of: weekly cash benefits, medical benefits, and the right to later bring a review-reopening action.

Open File Settlement. Open file settlements are authorized under Iowa Code Section 85.35(2). An open file settlement is technically called an "Agreement for Settlement." However, I think the term open file settlement does a better job of helping describe the nature of the settlement.

Basically, in an open file settlement the worker and the defendants agree to resolve the case as if it had gone to trial and the claimant won. Therefore, the worker is given weekly benefits, although instead of a workers' compensation deputy deciding the amount of the benefits, the parties are striking an agreement on the amount of the benefits. Second, the worker receives his right to lifetime medical benefits for the injury. Third, the worker receives his right to bring a review-reopening action if his condition gets worse.

The way it was explained to me is that the term "open file settlement" refers to how the insurance company handled the case after settlement. In an open file settlement the worker's right to receive lifetime medical benefits and the right to a review-reopening remained alive and active. Therefore, the insurance company could not close the file and put it in storage, but kept it as an open or active file.

Closed File Settlement. In a closed file settlement, the parties agree that the injured worker will be paid a set amount of money. However, the parties also agree that the injured worker is not entitled to any future medical care, and the worker is not entitled to bring a review-reopening action if his condition worsens.

Closed file settlements are technically referred to as "compromise settlements" and are authorized by Iowa Code Section 85.35(3).

The term "closed file settlement" also refers to how insurance companies treated the case after it was resolved. In a closed file settlement once the insurance company writes the check to pay the agreed amount of money, they can close the file and put it in deep storage because they do not have an obligation to do anything else related to the case in the future.

Hybrid of an Open File Settlement and a Closed File Settlement. It is also possible to negotiate a settlement that has parts of both an open file settlement and a closed file settlement. The parties can agree in a hybrid settlement to pay cash up front, close out or eliminate the right to a future review-reopening; but leave future medical care open.

Effectiveness of Settlements. Under Iowa law even though the parties might agree to the settlement terms, no settlement is effective until it is approved by the Workers' Compensation Commissioner.

The parties are required to use the forms of the Iowa Workers' Compensation Commissioner for the different types of available settlements.

Future Settlement Blog Posts. Down the road I will be talking about some other settlement issues. This includes settlements in extremely serious injury cases in which the worker may also be receiving Social Security Disability benefits, and may have medical coverage through Medicare.