Today I am going to talk about some special legal issues that come up in cases where an older worker is hurt on the job.
The first issue is the effect that the age of an injured worker has in assessing how much money they should receive. The first part of the answer is that age is not a factor if a worker has an injury to a scheduled body part such as an arm, hand, finger, leg, foot or toe. However, if an older worker has an injury to an unscheduled body part such as a neck, shoulder, back or hip, then age becomes an important factor. See here for a longer discussion about the difference between scheduled and unscheduled injuries.
If the older worker has an unscheduled injury then figuring out how much compensation should be paid requires analyzing the effect of the injury on the worker’s earning capacity. The factors that are generally assessed in determining the loss of earning capacity from the injury are:
1. The worker’s education.
2. The worker’s qualifications and work history.
3. The worker’s motivation.
4. The effect of the injury on the worker’s actual earnings.
5. The resulting functional impairment from the injury.
6. The permanent work restrictions that resulted from the injury.
7. Whether or not the worker is able to continue doing the same kind of job or jobs that they generally have during their lifetime.
8. Whether the employer at the time of the injury continues to employ the injured worker or terminates their employment.
9. The age of the worker.
Up until 1995 older workers who received a job injury to an unscheduled body part generally received less money than a younger worker who hurt the same body part. The reasoning for this difference was that the older worker was closer to retirement, and therefore the negative effect on earning capacity would be for a shorter period of time.
However, in 1995 the Iowa Supreme Court changed the law in the case of Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258 (Iowa 1995). In Nelson the court concluded that injuries to older workers were actually more serious, in part, because of the difficulty in re-training an older worker for a new occupation. The Nelson court also found that many employers preferred younger employees anyway, and older workers that also had limitations from injuries were even more unattractive to employers.
I think that the conclusion in the Nelson case was correct. In cases in which I have vocational assessments performed, the experts uniformly give opinion about the much greater difficulties an older injured worker will have in obtaining a job. While I do not handle Social Security Disability cases, I do know good lawyers in this area to whom I refer my work comp clients who might also qualify to receive Social Security Disability benefits. I have learned over the years that the Social Security Administration recognizes the difficulty that older workers have in re-training for new fields and therefore has lower disability standards for workers who are 55 and older.
Balanced against the Nelson rule that generally favors higher compensation for older workers is another legal principle involving motivation. Under Iowa work comp law an injured employee who is not motivated to continue working or to seek a new job will receive a lower award than an employee who is motivated to work.
A frequent area where these two legal rules come into conflict is when an older worker is injured and decides to retire. The defense argument in this situation is usually that the worker was not really hurt that bad and was just tired of going to work every day. I advise the older injured workers that I represent that it is important to make their maximum effort to return to work, and help them with this process. I also use vocational and medical experts to help prove the significance of my clients’ injures. See here for my April 5, 2013 post about vocational experts; and here for my December 21, 2012 post about medical experts
All work injuries are serious. However, if you are an older worker and you are hurt on the job, there is a much bigger chance that the injury will have a substantial effect on your future life and finances. An older employee with a work injury needs to make sure their rights are protected and they should be sure to talk to an experienced Iowa workers’ comp lawyer.