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The Iowa Workers’ Compensation law underwent significant changes last legislative session (2017), going into effect for work-related injuries occurring after July 1, 2017. For a comprehensive summary, lookhere (for those changes to the Iowa Code) and here (for those changes to the Iowa Administrative Code). This update addresses one change in the effect of return to work on the industrial disability analysis. In that regard, the discussion below illustrates two main take-a-ways:
-- Functional impairment ratings will become more important in return-to-work situations.
-- Job descriptions and work restrictions will be scrutinized more in cases where an employer offers a claimant a return to work but the claimant denies the offer, arguing he/she is unable to perform job functions/duties under restrictions.
By way of background, in Iowa, an injury to a “whole person” – an injury that is not considered a scheduled-member injury per Iowa Code §85.34(a)–(t) (2017) – results in an “industrial disability.” Iowa Code §85.34(u) (2017). Thus, with an industrial disability claim, the determination of the injured worker’s permanent disability is the effect the whole-person injury has on employability, as determined by a number of factors – which are: functional disability (i.e., impairment rating), age, education, qualification, experience, and ability to engage in employment that claimant is fitted. Larson Mfg. Co., Inc., v. Thorson, 763 N.W.2d 842, 857 (Iowa 2009);see also Bearce v. FMC Corp., 465 N.W.2d 531, 535 (Iowa 1991).
Under the new law, if a claimant returns to work making the same or greater earnings, the claimant is not entitled to the industrial disability analysis; rather, the permanent partial disability award, if any, is determined by the functional impairment rating for the whole-person injury assigned by the doctor(s), as determined by the 5th Edition AMA Guides. Iowa Code §85.34(u) (2017).
Iowa Code §85.34(u) provides in pertinent part:
If an employee who is eligible for compensation under this paragraph returns to work or is offered work for which the employee receives or would receive the same or greater salary, wages, or earnings than the employee received at the time of the injury, the employee shall be compensated based only upon the employee’s functional impairment resulting from the injury, and not in relation to the employee's earning capacity. Notwithstanding section 85.26, subsection 2, if an employee who is eligible for compensation under this paragraph returns to work with the same employer and is compensated based only upon the employee’s functional impairment resulting from the injury as provided in this paragraph and is terminated from employment by that employer, the award or agreement for settlement for benefits under this chapter shall be reviewed upon commencement of reopening proceedings by the employee for a determination of any reduction in the employee's earning capacity caused by the employee's permanent partial disability.
While it is yet to be determined how the Iowa Workers’ Compensation Commission and the courts will interpret this new law, we can use two recent Court of Appeals decisions (applying the old law) as case studies and compare how they would have been affected by the new law.
Norton v. Hy-Vee, Inc.
In Norton v. Hy-Vee, Inc., Vicky Norton, the Claimant, injured her neck and back on April 2, 2009, and suffered from mental health issues of anxiety and depression as a result of the injuries. The Deputy found that Norton sustained a 70% industrial disability. In assigning the industrial disability rating, the Deputy analyzed Norton’s motivation to work, her “unique skills that allow her to be an exceptional [employee],” and the fact that her work restriction – maximum of 6-hour work days – resulted in her working 25% less than before the injury. Norton argued she sustained a permanent total disability; Hy-Vee argued Norton sustained a 25% industrial disability. The Commissioner, in approving the Deputy’s conclusion of 70%, noted that Norton received very high marks from her supervisors, and she was working what was considered full-time in the local market (30 hours per week). Norton argued that the Commissioner erred in adjusting the industrial disability rating downward based on the fact that she returned to work. On this point, the Court of Appeals noted:
Based on the above law, we agree with Norton that an injured worker's performance of accommodated work, in and of itself, many [sic] not be used to reduce a worker's industrial disability rating. But the injured worker's performance of accommodated work can be considered in assessing the industrial disability rating if the work being performed is “transferrable to the competitive job market,” and “discloses that the worker has a discerned earning capacity.”Id. at *6 (citations omitted).
The case was being decided under the old law. That said, the new law explicitly instructs theadjustment of the industrial disability award if the claimant returned to work and earned the same or greater wage. Under the new law, evidence of Norton’s wage would have been admitted and discussed, and if it was the same or greater, then the functional impairment rating of Norton’s whole-person injury would have been admitted and discussed. Likely, the outcome would be the same under either the new or old law, as it is unlikely that Norton was earning the same or greater (considering the 25% decrease in work time). In any case, there is an additional evidentiary piece – the post-return-to-work wages – that must be analyzed, prior to undertaking the traditional industrial disability analysis.
Allen v. Tyson Fresh Meats, Inc.
In Allen v. Tyson Fresh Meats, Inc., the Claimant, Allen, was assigned a 12% body-as-a-whole impairment rating (which was the combination of injuries to two body parts – knee and spine). While Allen argued that his advanced age and history of working only manual labor supported a finding of industrial disability of greater than 12%, the Court disagreed, noting that “Allen had no loss of job or earnings due to his injury. In fact, he continued to work in the same job, for the same company, without having missed any days due to injury . . . .” p. 6. The Court noted: “While such a finding does not preclude Allen from an award of industrial disability, it cannot be overlooked in determining how much his injuries affect his employability.” Under the new law, this “employability” analysis is unnecessary, which is common place in pre-July 1, 2017, whole-person injury analysis. If this was a post-July 1, 2017, claim, Allen’s industrial disability would be 12%, the functional impairment rating. In short, the new law offers a level of certainty to this type of a claim: it effectively makes a whole-person injury to a claimant that returns to work earning the same or greater wages a scheduled-member, whole-person injury, leaving the permanent partial disability percentage to be determined by the functional impairment rating(s) assigned.
Even in return-to-work situations as discussed above, the traditional industrial disability analysis still applies in the event that the claimant receives an industrial disability award based on the new return-to-work provision but is later terminated – in such case, the earning-capacity analysis is appropriate upon a review-reopening proceeding.