Questions We Are Asked Each Week By Clients...
We are often asked questions like how much should the insurance company pay? How are my weekly benefits calculated?, etc. So we have put together some of the questions we here the most and the answers to them. We hope this helps you avoid making a mistake in your Iowa personal injury, car accident, dog bite, work injury or other injury matter.
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What Qualifies as a Workers Comp Claim? Do I Qualify?
Keep in mind that every state has different laws, but here in Iowa there are several requirements to qualify as a workers comp claim including:
1. Prove That You Have An Iowa Workers Compensation Claim.
The first step is to prove that you have an Iowa Workers Compensation Claim. If you were hurt within the state of Iowa, then it is clear that you have an Iowa claim. However, if you work for an Iowa company and were injured in another state then you may still have a claim here in Iowa. There are very specific legal and factual requirements to prove that Iowa has jurisdiction over your claim. Keep in mind, that just because they are paying you Iowa benefits does not mean that you have an Iowa claim. There are things to consider such as where the "contract of hire" was made, did you "regularly work" in Iowa, does your employment contract contain a provision that Iowa has jurisdiction if you are hurt at work, etc.
We have many potential clients who contact us who were paid Iowa benefits but were injured out of the State of Iowa. Some of them we have had to tell that Iowa does not have jurisdiction and they need to promptly file their claim in another state. If you have questions about whether you truly have an Iowa claim or not, you should immediately contact our office as the time limits to file cases in other states can be one year or less.
2. Prove An Employer-Employee Relationship
If Iowa has jurisdiction over your claim, then you need to prove an employer-employee relationship. This means that you are not an independent contractor. There are several factors to determine if you are an employee or not including:
1. If taxes are being taken out of your wages, then chances are you are considered an employee;
2. If there is a contract between the parties for a certain piece or kind of work to be done at a fixed price. For example, if you are paid a flat amount of money to complete a certain job then that would be a factor to show you are an independent contractor.
3. The independent nature of the business. For example, if you are hired to work in a factory compared to go do a roofing project on a house will affect if you are an employee or not;
4. If the person you are hired by has the right to supervise the work that you do. An example would be if the person who hired you is directly how you are doing your job compared to just looking at the finished product;
5. Along the same lines is the right to control the progress of the work. If the person you are hired by is micromanaging the project, this would make it more likely that you are an employee;
6. An additional factor is who provides the equipment, tools, supplies, and materials. If you are the one providing these items that weight towards you being an independent contractor, but keep in mind that this is only one of the factors;
7. The amount of time in which you are doing the job. If this is the first time you have been hired to do the work and it is only a one time project then this would be evidence that you are an independent contractor;
8. Whether you are paid by the amount of time you work or by the job. If you are paid on an hourly basis this shows that you are more likely an employee;
9. If the work is a part of the regular business of the employer then you are more likely to be considered an employee.
3. Prove You Were Injured While Doing Your Job
If you have proven that you are an employee and Iowa has jurisdiction of your claim, then the next step is to prove that you were injured basically while doing your job. The legal requirement is arising out of and in the course of your employment. Basically, this means that you were either on the clock working or doing something benefiting your employer. Generally, this includes injuries for work done on, in, or about the premises which are occupied, used, or controlled by the employer. For example, a fall in the parking lot while a worker is going into work or leaving to go back to their car is considered to be work-related. However, if you are driving from your home to go to your normal work shift and are injured in a car crash then chances are that it would not be considered work-related.
4. Did Work Activities Cause Or Aggravate Condition
Once you are past these legal requirements, then the medical aspect of your case will be the focus. The question will be, did your work activities cause and/or materially aggravate your medical condition such that you now need medical care and treatment. These questions are for the doctors that the insurance company sends you to, your other medical providers and the doctors that you may see for an independent medical examination can answer. If you are able to prove that your injuries are work-related, then there are three different basic types of compensation available to you:
1. Medical care and treatment including mileage to and from your medical providers and the pharmacy at the direction of your employer and/or their insurance company;
2. Healing period benefits which are paid while you are either taken completely off work because of your injuries (TTD- temporary total disability) or do not make as much as you did before being injured because of your work restrictions (TPD- temporary partial disability).
3. Permanent benefits are paid if your injury is determined to be permanent in nature. The amount of, and duration that you will receive these benefits depends on many factors. These factors are discussed further in our Iowa Workers' Compensation book that we offer a no-cost or risk to you.If you have questions about any of the above, please feel free to call our office (641-792-3595) at no cost for your Iowa work injury evaluation. We will take the time to speak with you (usually by phone at first and then often later in person), answer your questions, explain how the process works and even tell you if we think you need an attorney or not.
Do Workers Compensation Benefits Stop at 65?
In Iowa, work comp benefits do not automatically stop when you reach age 65. However, keep in mind that there are a few different types of benefits and they work differently. There are temporary benefits referred to as TTD (temporary total disability), permanent benefits called PPD (permanent partial disability) and medical benefits which include paying for the entire cost of the medical care you are provided at the insurance company's discretion, plus your mileage and time you miss from work that you are not paid for. Also, keep in mind that the receipt of Social Security benefits can have a big impact on benefits paid up until the time that you reach your full retirement age discussed more below.
TTD- These are paid to an injured worker regardless of age when after a work injury they are taken off work by the authorized treating physician or given work restrictions that the employer cannot accommodate. These are paid until the injured worker reaches MMI (maximum medical improvement) or otherwise known as you are as good as you are likely to get from the doctor's standpoint.
PPD- These benefits are paid based upon your impairment rating in scheduled member only cases or your industrial disability in other cases. You are paid a number of weeks of benefits which can extend past age 65. The number of weeks you will be paid depends upon the type of injury you sustained, your functional impairment rating under the AMA Guides and in some cases your age, education, loss of actual earnings, along with many other factors. One of the biggest factors in how much you will be paid is if you have a scheduled member injury (arm, hand, leg, foot, eye, etc.) or an unscheduled (also known as an industrial injury like a back, neck, hip, CRPS, certain injuries around the "shoulder" joint, etc.). We have other articles on our webpage and book that we offer at no cost which explains PPD compensation in much further detail.
Medical Benefits- If you were injured at work then technically you have lifetime medical benefits in addition to what they paid you for weekly benefits. This is assuming that you did not "settle" your case which another topic in itself. Also, often time insurance companies will end up denying medical care and treatment for things such as:
1. You no longer work for the employer;
2. They can blame arthritis for your ongoing problems instead of the work injury; and/or
3. They just don't want to spend any more money on your medical care.
Social Security Benefits- If you are receiving SSI (supplemental security income) then any compensation that you receive in wages or a workers' compensation check will reduce your benefits. Whereas, if you receive SSDI (Social Security Disability) there will be an offset evaluation done in order to determine what, if any, amount your monthly Social Security disability payment are reduced by. The SSA (Social Security Administration) only allows you to make up to 80% of your highest year earnings in the 5 years prior to your work injury. For example, if your highest year of wages is $40,000 you are only allowed to received up to $32,000 per year/$2,666.67 per month ($40,000 X 80% = $32,000). So if you are receiving $500 per week in work comp which is a monthly amount of $2,166.67 then the maximum you can receive each month in Social Security is $500 before the rest of your SSDI benefits are offset. Keep in mind that you are allowed deductions for attorney fees, litigation costs, but the offset will continue until you reach your full retirement age or your case is properly settled with the proper Social Security offset language used. It is very dangerous for an injured worker to try to settlement almost any case on their own and is downright not smart to try to settle a case without an attorney when they are receiving SSDI.
If you have any more questions you can always call us at 641-792-3595 or contact us here!
How Much Time Do I Have to File a Workers Comp Claim in Iowa?
Keep in mind that there are really two-time deadlines. The first deadline is called notice and it is when you report your injury. The other deadline is called the statute of limitations and it is when you must have a petition on file with the Iowa workers' compensation agency.
Notice- Iowa Code Section 85.23 was changed effective July 1, 2017, and currently provides that you have 90 days to report your workers' comp. claim from when you "knew or should have known that the injury was work-related."
In the case of a traumatic injury, it is always the best policy to report your work injury as soon as it happens. Many employers have requirements in their employee handbook requiring 24-hour notice. This does not change the law that you have up to 90 days to report the injury, but the longer you wait to report it, the less likely that the insurance company will admit the claim and pay benefits. For example, if you are at work and while lifting something your back hurts, report it right away by telling your employer what you were doing at work and that you are injured. You should also ask for medical care and to fill out a work injury incident report. Not all employers have reports such as these, but it is always best to put your work injury in writing and keep a copy of what you submitted to your employer.
With injuries that occur over time, what are called cumulative trauma injuries notice is a little different. Often you do not have an exact time and date when the pain started. However, keep in mind that it is always better to report a specific work incident that caused pain. For example, if when you do your job your back hurts then you should report exactly what you are doing at work that makes your back hurt. If you tell your employer "I don't know" this can create problems later on. Also, you may be seeking medical care and treatment on your own before you now the condition is work-related. For example, sometimes your doctor will tell you "I think this is work-related". If they tell you this, then it is time to report your work injury because it is very likely that the 90-day time limit is counting down.
There are a couple of pointers to keep in mind when reporting work injuries:
1. In order to report a work injury, you need to notify your employer that you were doing a work-related activity and when you were injured. Just telling your employer "my back hurts" without telling them it is caused by your work may not be enough notice and your claim may be denied because of it.
2. If you hurt your back on Friday and want to see how things go over the weekend before reporting it, this is a bad idea. Employers are very suspicious of injuries reported after you have not been at work. The chances that your claim will be unjustly denied increase if you report it after a weekend, vacation, etc.
3. Always put something in writing about your work injury and keep a copy for your own records. Sometimes employers will claim we never received an injury report as somehow it get's "lost". Also, remember to write down in detail how your work caused you to be injured.
Statute of Limitations
Iowa Code Section 85.26 is the law dealing with the time limit you have to file a petition with the Iowa Workers' Compensation Commissioner. The general rule is that you must file a petition with 2 years of your date of injury, not when you provided notice. Failing to properly and timely file a petition will result in the case being dismissed and you receive no compensation. This is true regardless if you are still treating with your doctors, regardless if you are unable to work, etc. The biggest exception to this rule is if you are paid indemnity workers' compensation benefits. These could be either TTD (temporary total disability), TPD (temporary partial disability), and/or PPD (permanent partial) benefits.
We recommend at the very least that you speak with a qualified workers comp attorney within 18 months of the date of your injury to determine if your case qualifies for the exemption. We have had to tell far too many clients that just because they provided medical care, your 2-year statute of limitations is not extended or you may have received disability benefits, but they were not workers' compensation benefits. We will evaluate and help you make this determination at no risk or cost to you.
If is it confirmed that you have been paid workers compensation benefits within 2 years of the date of injury, then your statute of limitations is extended to 3 years from the date of last payment. This does not mean that you should wait that long to file a petition because most injured workers heal from their work injuries within 2 years of their injury. At the present time, it takes around 1 year from the time you file a petition until when you have a hearing before a workers compensation judge. Then it will take an additional 3 to 12 months for the judge to provide his/her decision. That decision can be appealed to the judge's boss, the workers' compensation commissioner which adds an additional 18 to 24 months and sometimes there can even be further appeals.
My point is that the longer you wait to file a petition, the longer you will wait for either a settlement or a trial. We do not rush to file your petition like some attorneys do because we want to do what is best for you, not just your case. Sometimes when you are back to work making the same amount of money this may mean waiting several months or longer before filing a petition to see how things go. What you don't want to have happen is for your case to be rushed to settle and then after your settlement, you lose your job. We will help you through the process and give you the best legal advice for your specific situation. Our promise to you is that if you decide we are the right workers' compensation attorneys for you that we will treat you like family. We have 4 fulltime offices in Central Iowa, but have branches office and represent injured workers throughout the State of Iowa.
Can I Reopen an Old Workers’ Compensation Claim if My Injury has Worsened?
Have You Settled Your Case Properly?
The first thing to look at is whether you "settled" your case? There are 3 basic types of settlements:
1. Agreement for settlement;
2. Agreement for settlement with full commutation; and
3. Compromise settlement;
The only type of these settlements you can reopen is an agreement for settlement which is what is commonly called an "open file". The other settlements include a lump-sum payment in exchange for a "closed file" which means your medical care ends, your benefits end, and you give up your right to reopen your case. In order to successfully reopen an agreement for settlement the law requires you to prove one or more of the following items:
(1) a worsening of the claimant's physical condition;
(2) a reduction of the claimant's earning capacity;
(3) a temporary disability developing into a permanent disability;
(4) a critical fact existed but was unknown or could not have been discovered by the exercise of reasonable diligence at the time of the prior settlement or award; or
(5) a scheduled member injury later causes an industrial disability.
One of the most common types of what is called a review-reopening petition is when an injured worker has permanent work restrictions which the employer accommodates and then the employer decides they no longer want to or can accommodate the work restrictions and the worker is fired. Also, sometimes we will see a person who has sustained a foot or knee injury for example which causes them to walk differently (called an altered or antalgic gait) develop back or hip pain. This can also trigger your right to review-reopen the case.
Keep in mind that the worsening of your medical condition will need to be documented by doctors. Often it will involve additional medical examinations and an independent medical examination with a doctor of your choice. Generally, the worsening of your medical condition can be proven through an increase in your impairment rating, additional work restrictions, additional medical care in some cases like surgery, etc. These are not always easy cases for injured workers to win as the judges do not necessarily like to hear the same case on more than one occasion.
At our office, we will not rush you into settling your case on a closed file basis giving up your right to review-reopen your case. There are some cases when this is the best option, but there are many others where we recommend either an agreement for settlement or a trial which gets you to the same place, an open file.
What if I Cashed the Workers' Comp Checks?
Keep in mind that if you have not signed any settlement paperwork but have cashed the checks the insurance company sent you then you have not settled your case and the above probably does not apply to you. However, the statute of limitations which can be as short as 2 years still applies to you so at the very least you should seek the advice of a qualified workers' compensation attorney to see if you may be owed additional compensation.
What if I Did Not Settle, But Had a Trial Instead?
In effect, going to trial and receiving an arbitration decision is the same thing as an agreement for settlement. You can successfully reopen your case if you file the petition for review-reopening within the time deadlines and you meet the legal requirements described above.
Have You Waited Too Long?
The general rule in Iowa is to successfully bring a review-opening petition it must be filed within 3 years of when you last received a payment of workers' compensation indemnity benefits such as TTD, TPD or PPD. Most commonly this would be payment of PPD (permanent partial disability) benefits. This is called the statute of limitations and there are few exceptions to get around these strict time deadlines. If you think you may qualify for review-reopening, then you should immediately contact an Iowa workers' compensation attorney with experience to answer your question.
Also, this question is complicated by the fact that in 2017, the Iowa legislature led by Republicans radically changed our workers' compensation laws by reducing compensation to injured workers, making it harder for them to recover, etc. Most of the new laws went into effect on July 1, 2017, such that your date of injury may play a role in the amount of time you have. The only potential good change made to the new law is that if your case is properly resolved, then there is an argument to be made that you do not have a statute of limitations on your case and if you are terminated later on and do not find new employment making the same or more money than you were making at the time you were injured you may be allowed to reopen your case. However, it will be many years before this issue is decided by Iowa appeals courts so do not take it for granted that this right exists. The best practice is to consult with a qualified Iowa workers' compensation attorney to find out how the new laws may apply to your case.
Our office has been handling workers' compensation cases for injured workers throughout Iowa for more than 20 years. We are here to answer your questions, tell you if you even need an attorney or not and help you with the process if you need an attorney and you decide we are best for you and your case.
If you are considering even calling an attorney, the go-to Google and search for the attorney and/or go to an attorney review page like www.Avvo.com and look-up what the attorneys past clients have to say. In addition to what clients have said about us online, we have real clients telling you about their experience at www.OurClientsTalk.com.
I don’t like the workers’ compensation doctor or other medical provider. Can I choose a different one?
You always have the right to choose medical care on your own, but if you want the workers' compensation insurance company to pay for it, then you will generally need to see the medical providers that they choose. However, there is a process called alternative medical care which is discussed in detail in Chapter 4 of our book in which you may be able to obtain a different medical provider under certain circumstances. There are very specific requirements in attempting to change medical care so you should consult with an attorney should you decide this is what you want to do.
To learn more including the 7 Deadly Mistakes to Avoid if You are Hurt at Work order a copy of my FREE Book entitled “Iowa Workers’ Compensation- An Insider’s Guide to Work Injuries”. Why offer a Free Book? I have represented hundreds of Iowans hurt at work and have seen too many clients make mistakes before they had the “right” information resulting in them losing thousands of dollars. Iowans hurt at work are now beginning to realize that they should learn about Iowa's work injury laws. Finally, you can learn about work injuries in the comfort of your own home with no risk or obligation. So to learn how to avoid costly mistakes and your rights Call Now (800)-707-2552, ext. 511 (24 Hour Message) or click the link to request your copy. For immediate assistance or to schedule your NO COST Work Injury Case Evaluation, CALL 641-792-3595 and ask for Corey or Erik.
The doctor they sent me to wants me to have surgery, but the insurance company has not approved it. What can I do?
Unfortunately, it is common for insurance companies to ignore the treatment recommendations made by the doctors they choose. There is a procedure called "alternative medical care" which can be used to seek an order requiring the insurance company to pay for the recommended treatment. The first thing you are required to do is to send a letter to the insurance adjustor requesting that the care be approved. You should keep a copy of the letter as you have to prove you requested the care in writing.
This and other specific legal requirements regarding alternative medical care are explained in Chapter 4 of our Iowa work comp. book available at no cost to you.
Can you ask your employer to do a different or another job if your doctor says you are unable to do your current job?
Yes, you can always ask, but keep in mind that in most circumstances your employer is under no obligation to either provide you with work within your restrictions (however, if they don't have work for you then you should receive a weekly workers compensation check) or provide you with work that you feel is more suitable. In most situations, you are an employee at will and if you reject work that is offered to you within your restrictions then you may be fired and also receive no weekly workers compensation benefits.
What Do I Need to Do to Return to Work after a Work Injury?
If your doctor releases you to return to work with or without restrictions then you should immediately contact your employer. You should request that your doctor provide you with a copy of the written return to work document. You should give your employer a copy, but also keep a copy for your own records. Failing to timely contact your employer after you have been released may result in termination of your employment and your workers' compensation benefits being stopped. It is important to keep your employer informed of changes in your doctor's orders regarding your ability to work so that it does not affect your benefits.
My son died in a work accident, was not married and has no dependents. What happens?
If a deceased worker is not married and has no dependents, then workers' compensation will only pay the related medical expenses and burial expenses up to 12 times the statewide average weekly wage. However, depending upon the circumstances there may be other claims to pursue so a family member should consult with an attorney to find out more information.
To learn more including the 7 Deadly Mistakes to Avoid if You are Hurt at Work order a copy of my FREE Book entitled “Iowa Workers’ Compensation- An Insider’s Guide to Work Injuries”. Why offer a Free Book? I have represented hundreds of Iowans hurt at work and have seen too many clients make mistakes before they had the “right” information resulting in them losing thousands of dollars. Iowans hurt at work are now beginning to realize that they should learn about Iowa's work injury laws. Finally, you can learn about work injuries in the comfort of your own home with no risk or obligation. So to learn how to avoid costly mistakes and your rights Call Now (800)-707-2552, ext. 511 (24 Hour Message) or go to www.IowaWorkInjury.com. For immediate assistance call 515-440-2852 and ask for Corey.
My employer put me on FMLA leave and I did not apply for it. Can my employer do this?
Yes, your employer can run your FMLA time (generally up to 12 weeks of leave if you qualify explained more in our Iowa Work Injury book) at the same time that you are off work due to a work injury.