HOW DO YOU KNOW IF AN EMPLOYEE IS EARNING THE SAME OR GREATER WAGES UNDER SECTION 85.34(2)(V) TO PRECLUDE ASSESSMENT OF INDUSTRIAL DISABILITY?

Section 85.34(2)(v) can be used to limit an employee’s permanent disability indemnity recovery for a body as a whole injury to just the amount of functional loss sustained by the injury (as opposed to assessment based on industrial disability which is typically higher); as outlined in the AMA Guidelines 5th Edition.  However, for this provision to apply, the employee must either return to or be offered work for the same or greater wages than they received at the time of the injury. What constitutes the “same or greater wages” has been the subject of two recent inter-agency appeal decisions.

In McCoy v. Menard, Inc., the Iowa Workers’ Compensation Commissioner, Joseph Cortese, overruled a prior deputy’s finding that the offer of work merely need to offer the same or greater hourly wage. The Commissioner reasoned that looking at how much a worker earned an hour was only half the equation. You also have to consider how many hours of work each week the employee was offered.

In Vogt v. XPO Logistics, the Commissioner was asked to determine what time period is used under Section 85.34(2)(v) to determine if an employee’s earnings are the same or greater than the employee made before the injury. The statute is not clear on this issue. The Commissioner rejected the argument that you look at all of the employee’s earnings once they return to work after the accident. Instead, the Commissioner ruled that “I find claimant’s post-injury earnings snapshot should occur at the time of the hearing.”

The problem with this ruling is that the Commissioner did not articulate what time period was “at the time of the hearing.” Whether this is a week, a month, or a year will likely depend on the facts of each case until the Commissioner weighs in on these issues again.

This blog post was drafted by Emily Fehringer, a law student and law clerk at Baylor Evnen. If you have further questions about section 85.34(2)(v), please call Paul Barta or Micah Hawker-Boehnke at 402-475-1075.