Third Quarter 2017
By: Stephen P. Murray
Question: Under Iowa law, can a temporary transitional placement at a not-for-profit or similar employer be used to terminate TTD benefits when the injured employee has not reached MMI?
Short Answer: Under Iowa law, if suitable work is not offered by the employer for whom the employee was working at the time of the injury, and the employee who is temporarily partially disabled elects to perform work with a different employer, the employee shall be compensated with temporary partial benefits.
Discussion: Iowa is one of eight states whose legislature has specifically addressed Modified Duty Off-Site (MDOS) statutorily, although it does not specifically address charities or not-for-profit organizations within the context of the implementation. Under the Act, not only can an employer terminate TTD benefits to an employee if it offers “suitable” accommodated work, but it can terminate TTD benefits if that employee elects to work off-site at another organization during the course of their recovery.
Iowa historically has been one of the most pro-employee states in the country when addressing workers’ compensation; however, the Iowa legislature has recently amended much of the Act which limits the Commission’s ability to be as pro-employee. One of the legislative changes places much of the burden on the employee of proving accommodated work is not “suitable.” This makes it easier for employers to offer accommodated work to remote workers that otherwise would not generally work at the employer’s on-site location.
At this time, it would appear as if Iowa law allows for the transitional placement of an employee at a not-for-profit or charity so long as that work is “suitable.” The burden of proving the “suitability” of work now lies mainly on the employee to refute that the work is not suitable. Absent a temporary work assignment completely unrelated to an employee’s pre-injury position, and absent an employee’s inability to perform such tasks (i.e. a job that the employee cannot do or is not trained to perform), an employer can terminate TTD benefits to an employee after placing them for modified duty with an off-site charity or not-for profit organization.
Practice Tip: The new legislative changes to Iowa Code 85.33 presume that light-duty work offered is “suitable” for all employees, including remote workers such as truck drivers. Employers are required to communicate any offer of temporary work in written form, and address all details of the position including lodging, meals, and transportation. Within the writing, the employer should ask the employee to agree to the terms of the accommodated work or provide reasoning for why the accommodated work is not suitable.
An employer should always first attempt to accommodate an employee’s work restrictions within their own company. If this is not possible however, a MDOS program appears a perfectly acceptable alternative given the Iowa legislature’s recent amendments to the Act. An employer should be mindful of the types of duties being assigned to an injured worker in an effort to maintain the “suitability” of the work being assigned.
Finally, employers must be mindful that in Iowa, a 30-day notice letter must be sent to an employee prior to terminating TTD benefits. Within this notice, the employer must inform the employee as to the reason their benefits are being terminated and advise that employee of their rights to pursue a suit under Iowa workers’ compensation law.