Articles Posted in Procedural issues

Our law firm accepts work injury case referrals from lawyers who do not regularly handle Iowa worker’s compensation claims. In the referral cases the clients pay the same one third contingent fee that we use in non-referral cases.

We have added a new section to our website that discusses how the referral of work comp claims work. You can see the new section here.

An important part of most the Iowa workers’ comp cases that I handle is to get a good medical report from a neutral doctor to support my client’s case. When I send my clients to see the doctor that will write the report, that appointment is called an Independent Medical Exam or IME. The written analysis that the doctor eventually provides is usually referred to as the IME report.

I pick the physicians that I use for the IME process based on my past experience with the doctors that provide this type of service. I also read the decisions that are issued by the Workers’ Compensation Judges to stay up to date on what the Judges think of the opinions of the various experts that perform IMEs in Iowa.

Today I am going to talk about my strategy for the letters, records and other items that I send to the IME doctor. The IME doctor will read my letter and the enclosed documents before seeing my clients. After seeing the injured worker the IME doctor will answer my questions as part of the doctor’s report on my client.

Last week the Iowa Supreme Court ruled in the case of Staff Management and New Hampshire Insurance Company v. Jimenez that an undocumented worker is entitled to receive work comp benefits for an Iowa job injury.

For many years undocumented workers that were hurt on the job in Iowa have been able to obtain workers’ compensation benefits. However, in the Jimenez case the employer and the insurance company challenged whether an undocumented worker should be able to receive Iowa workers’ comp benefits.

The worker in the case was Pascuala Jimenez who was 45 years old at the time of the workers’ compensation trial. Ms. Jimenez was born in Mexico and first came to the United States in 1991. She entered the United States legally with a visa that was good for ten years. After her visa expired Ms. Jimenez was no longer legally able to work in the United States and became an undocumented worker.

To explain when work comp checks are due, I need to start by talking a little about the two general categories of weekly benefits under Iowa law. See here for a longer discussion about these two different kinds of benefits. The short version is that from the time of a work injury until you reach maximum medical improvement the payments are called either temporary total disability benefits or healing period benefits. The purpose of these benefits is to replace the wages that you missed as a result of your work injury. This category of benefits can theoretically last forever as long as your condition continues to improve.

As soon as your medical condition has reached maximum medical improvement then the nature of the payments change from the healing or temporary benefits to what is called permanent partial disability benefits. The purpose of the permanent partial disability benefits is to compensate you for the permanent disability that you will have for the rest of your life as a result of the work injury.

If you are injured on the job in Iowa and are unable to work there is an initial three day waiting period before you become eligible to receive workers’ compensation benefits. For example, if you are injured on December 31, and are able to return to work on January 1, 2, or 3 you are not eligible to receive any workers’ compensation benefits. See Iowa Code Section 85.32. (There is a classification issue that effects this waiting period. If you are going to end up with a permanent disability, then the payments should start immediately, and there should not be a healing period. See Iowa Code Section 85.34(1). However, if it is not clear that you are going to end up with a permanent disability, then the waiting period applies).

Sometimes an employer will fail to purchase Iowa workers’ compensation insurance. If you end up getting hurt on the job when your employer does not have workers’ compensation insurance there is a procedure for suing the employer in a civil action. I will write about the strategies for dealing with an uninsured employer in the future.

Today I am going to write about the situation in which an employer does have workers’ compensation insurance, but the employer has a very high deductible. This is similar to the situation in which you can get collision coverage as part of your auto insurance, and choose the amount of the deductible you want. You can get a very low deductible like $100 or a very high deductible like $5,000. Your auto insurance company does not have to chip in until you have paid the amount of your deductible. When an Iowa employer has a high deductible workers’ compensation insurance policy this means that the insurance company does not have to pay towards your work comp benefits until the employer has paid the amount of the deductible.

Recently we have run into a number of cases in which employers have deductibles in the area of $250,000 per injury. This means the employer has to pay for the first $250,000 of workers’ comp benefits for each injured worker before the insurance company is required to start paying. This is not a problem as long as the employer has the money to pay for the medical care and the weekly checks for the work injury.

Unfortunately, we see a lot of cases in which seriously injured workers (especially middle aged workers and older) end up being fired from their jobs. The terminations usually fall under one of four categories.

The first general category is that at some jobs if a worker reports an injury they will be terminated almost immediately.

The second firing category is that the employer claims that the injured worker has violated some work rule, and this violation is the reason for the termination. A frequent termination reason cited is that the worker has missed work for medical treatment, and the worker has allegedly failed to comply with employer’s rules on notifications for missed work. However, injured workers end up getting fired for a wide variety of alleged rule violations including safety violations, time clock violations, damaging company property, falsifying company records, insubordination, poor performance, using company property for personal business, inability to return to full duty work within a required time period, going over the limited number of absences permitted by the employer, and inability to perform their job because of the injury.

Back on July 31, 2013 I wrote about the discovery requests that defendants ask injured workers in Iowa workers’ compensation cases. You can see that post here.

Today I am going to talk about the discovery that I conduct on behalf of my injured clients in Iowa work comp cases.

The two types of written discovery are Interrogatories and Requests for Production of Documents. In Interrogatories I get to ask the defendants specific questions that they have to answer. With my Requests for Production of Documents I get to require the defendants to give me copies of records and reports that are relevant to the case.

I am giving a presentation at the Iowa Association for Justice Fall Work Comp Seminar that is coming up on September 6, 2013. Here is a modified version of that presentation in which I set out my thoughts on how to best represent injured workers in Iowa workers’ compensation cases.

I. General Philosophy

1. I have developed a lot of check lists and forms, and I keep expanding them every time I run across something good.

In this post I am going to talk about the discovery process in Iowa work injury cases. Discovery is just the legal term for the process of investigating the case and asking the other side questions in a formal process. Both the injured worker and the defendants get to conduct discovery.

Under the discovery rules neither side gets to keep very many things secret. One policy idea behind not allowing secrets is that if each side has a clear and complete view of the case they can probably work out a fair settlement. A second policy idea behind the discovery process is to have the cases tried and decided on the merits, and avoid what used to be called “trial by ambush.”

Today I am going to start by talking about the usual discovery that the defendants conduct. In a later post I will talk about the discovery I conduct on behalf of injured workers.

In Iowa work injury cases the insurance companies and employers will sometimes conduct surveillance of the injured worker. The surveillance is usually done by companies that specialize in this type of work. The parties conducting the surveillance will secretly follow a worker for one to three days and videotape and/or photograph the worker to the extent possible. If a worker has claimed that they are severely disabled, and the defendants can obtain video and photographs showing the worker being involved in strenuous activities that is helpful evidence for the defense that the worker has exaggerated the extent of his injuries.

The Iowa case law is full of examples of videos and photos of injured workers performing activities that they claimed they could not do. Surveillance teams have been able to show injured workers doing things like helping to roof their own home, carrying large appliances out of stores, digging fence posts, laying sod, and planting fairly large trees by hand.

Under Iowa law the defendants traditionally have not had to reveal their surveillance evidence until after they have had an opportunity to take the deposition of an injured worker. A deposition is part of the discovery process in Iowa workers’ compensation cases in which the defense lawyers get to interview the injured worker in person. The injured worker is sworn under oath to tell the truth, and a court reporter takes down all of the questions and answers, and types them up in a written form that is called a transcript. The deposition transcripts can be used as evidence at the workers’ compensation trial. As part of the deposition the defense lawyers will ask the injured worker about his activities in such a way to try to hide from the worker that surveillance had taken place. The best possible results from a defense point of view is if a worker will deny doing the type of activities that he is actually shown performing in the surveillance video. The defense then has the double prong attack of being able to say that the worker not only exaggerated the extent of their disability, but lied about it under oath.