EMPLOYEE IS COMPENSATED INDUSTRIALLY UNDER SECTION 85.34(2)(v)

In Ocampo v. New Fashion Pork, LLP, an Iowa Workers’ Compensation Deputy Commissioner provided guidance on whether an employee’s permanent disability should be determined through a refiling proceeding.

In Ocampo, the employee returned to work for the employer, but was subsequently discharged before his workers’ compensation hearing. He then obtained new employment at a lower wage.

Section 85.34(2)(v) states that an injured employee is entitled to permanent disability benefits for functional impairment if the employee “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.” This is a limitation provision to the earlier language of the section.

The employer argued the limitation provision should apply because the employee had returned to work for the employer for a limited period of time. It contended that if the employee wanted to be evaluated for industrial disability, he should be required to refile.

However, the Deputy Commissioner explained that Iowa statutes are interpreted as a whole, not in part. The entirety of the section must be read in conjunction. Following the limitation provision, the section expressly indicates that a refiling to determine an employee’s permanent disability is required only when the employee is discharged by the employee’s same employer after an award by the court of permanent disability. It does not expressly indicate a refiling is required by an employee where an award of permanent disability has not yet been determined.

Since the employee in Ocampo had been discharged by his employer but had not yet received a determination of permanent disability benefits, no refiling is required by Section 85.34(2)(v) to determine those benefits.

Therefore, the Deputy Commissioner could determine the employee’s permanent disability benefits at the present hearing, and compensate him on an industrial disability basis, rather than functional.

This interpretation of Section 85.34(2)(v) was guided by the Commissioner’s analysis in Martinez v. Pavlich. For more details of that decision, please see our most recent blog post here.

This post was drafted by Faith Kowalski, a law clerk at Baylor Evnen. If you have questions regarding the determination of permanent disability benefits in your case, please call Paul Barta or Micah Hawker-Boehnke at 402-475-1075.