Engles, Ketcham, Olson & Keith, P.C., is committed to keeping our clients up to date with respect to the latest developments in the world of workers’ compensation in both Iowa and Nebraska. In our monthly updates you will find the latest in news in both states as well as additional information we hope will be useful to you in handling claims.
We hope that this email finds you well. As you know COVID-19 has turned the world as we know it upside down. The response to this virus has a large impact to those in the workers’ compensation system. We wanted to provide you with a brief update regarding the potential impact of COVID-19 on benefit entitlement for those who were injured prior to the outbreak. Please note that due to the novelty of this virus, there have been no known cases decided by the Courts with respect to COVID-19. The answers below are our general thoughts as to various situations based on what we currently know. This information is not intended to be specific legal advice but simply a guide as to how we believe the Court/Agency would handle certain situations related to COVID-19.
As always, if you have additional questions or would like to discuss any of these matters further, please do not hesitate to reach out to any of our workers’ compensation attorneys.
IOWA
Is an injured worker entitled to ongoing TTD/HP benefits when medical appointments are canceled and/or postponed?
It is unlikely that you can stop temporary benefits because a provider cancels or postpones a visit. Cancellation or postponement of a medical appointment is not be a basis to stop benefits under the statutory language in Iowa Code 85.33 and 8.34. The statue states that temporary benefits can only be terminated when one of three things occur: 1. return to work 2. MMI and/or 3. medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of the injury. A provider moving a medical appointment would not qualify for termination of benefits. Further, it is likely that the Agency would not look kindly to termination of benefits in a situation like this that is beyond Claimant’s control.
What, if anything is an injured worker entitled to if they are released to return to work with restrictions but the employer has closed due to COVID-19?
In this situation unless the worker is placed at MMI or the restrictions would not impact their previous position so as they would be determined to be medically capable of returning to employment substantially similar to the employment in which they were engaged at the time of the injury, they will be entitled to ongoing weekly benefits.
What, if anything, is an accommodated worker entitled to if the employer closes due to COVID-19?
If an injured worker has returned to an accommodated position but has not yet reached MMI it is likely that they would be found entitled to TTD/HP if the employer were to close due to COVID-19. The question would be as to if suitable work was still being offered when the employer made the decision to close. It is likely that the Agency would determine that as soon as the employer made the decision to close that there was no longer suitable work being offer (as no work is being offered) and as such the worker with temporary restrictions is entitled weekly benefits.
What, if anything is an injured worker entitled to if they make the decision NOT to report to their light duty position due to fear of COVID-19?
It is unlikely that benefits would be owed in this situation as it is the injured worker who is making the decision to remove themselves from the workforce, not the employer. If a suitable light duty job is offered but refused, the injured worker is not entitled to benefits. The question will hinge on if the offer of work is suitable. In this situation arguably the injured worker would be refusing a suitable job offer for a condition shared by the general public. Given the same it would likely be considered a refusal of suitable work and no benefits would be owed.
NEBRASKA
Is an injured worker entitled to ongoing TTD benefits when medical appointments are canceled and/or postponed?
It is likely that an injured worker would be entitled to ongoing TTD benefits when medical appointments are canceled and/or postponed. Payment of TTD benefits are due until MMI is reached, or until an injured worker can return to work within restrictions. In the latter case, TPD benefits may be due.
What, if anything, is an injured worker entitled to if they are released to return to work with restrictions, but the employer has closed due to COVID-19?
Unless the worker is placed at MMI, and therefore the restrictions are temporary, the injured worker will likely be entitled to ongoing weekly TTD benefits in this case. If they do reach MMI and the restrictions are permanent, there would likely be some TTD exposure for vocational rehabilitation since the employee is not able to return to his pre-accident job or an accommodated position with the employer.
What, if anything, is an accommodated worker entitled to if the employer closes due to COVID-19?
If an injured worker has returned to an accommodated position but has not yet reached MMI, it is likely that they would be found entitled to temporary disability benefits if the employer were to close due to COVID-19. The question in this situation will be if one is entitled to TTD or a temporary loss of earning capacity. Total disability exists when an injured worker is unable to earn wages in either the same or a similar kind of work he or she was trained or accustomed to perform or in any other kind of work which a person of the injured worker’s mentality and attainments could perform. If the assigned restrictions would allow for some kind of work, one could pay benefits based upon a temporary loss of earnings capacity rather than full TTD.
What, if anything, is an injured worker entitled to if they make the decision NOT to report to their light duty position due to fear of COVID-19?
The answer to this question is Nebraska is not immediately clear. The Court would likely look closely at whether the employer did provide an accommodated job that was truly within the restrictions assigned. Under Nebraska law, if an injured worker is assigned permanent restrictions and refuses a job with the employer that is suitable employment for which he or she has previously training and experience, by voluntarily leaving or some other reason, then he or she is not entitled to vocational rehabilitation benefits. If that situation is applied when considering entitlement to TTD versus TPD benefits, then the injured worker would not be entitled to any TTD or TPD benefits if they chose to not report to work for their light duty position due to fear of COVID-19.