85.34 - PERMANENT DISABILITIES.
85.34 PERMANENT DISABILITIES.
Compensation for permanent disabilities and during a healing
period for permanent partial disabilities shall be payable to an
employee as provided in this section. In the event weekly
compensation under section 85.33 had been paid to any person for the
same injury producing a permanent partial disability, any such
amounts so paid shall be deducted from the amount of compensation
payable for the healing period.
1. Healing period. If an employee has suffered a personal
injury causing permanent partial disability for which compensation is
payable as provided in subsection 2 of this section, the employer
shall pay to the employee compensation for a healing period, as
provided in section 85.37, beginning on the first day of disability
after the injury, and until the employee has returned to work or it
is medically indicated that significant improvement from the injury
is not anticipated or until the employee is medically capable of
returning to employment substantially similar to the employment in
which the employee was engaged at the time of injury, whichever
occurs first.
2. Permanent partial disabilities. Compensation for
permanent partial disability shall begin at the termination of the
healing period provided in subsection 1. The compensation shall be
in addition to the benefits provided by sections 85.27 and 85.28.
The compensation shall be based upon the extent of the disability and
upon the basis of eighty percent per week of the employee's average
spendable weekly earnings, but not more than a weekly benefit amount,
rounded to the nearest dollar, equal to one hundred eighty-four
percent of the statewide average weekly wage paid employees as
determined by the department of workforce development under section
96.19, subsection 36, and in effect at the time of the injury. The
minimum weekly benefit amount shall be equal to the weekly benefit
amount of a person whose gross weekly earnings are thirty-five
percent of the statewide average weekly wage. For all cases of
permanent partial disability compensation shall be paid as follows:
a. For the loss of a thumb, weekly compensation during sixty
weeks.
b. For the loss of a first finger, commonly called the index
finger, weekly compensation during thirty-five weeks.
c. For the loss of a second finger, weekly compensation
during thirty weeks.
d. For the loss of a third finger, weekly compensation during
twenty-five weeks.
e. For the loss of a fourth finger, commonly called the
little finger, weekly compensation during twenty weeks.
f. The loss of the first or distal phalange of the thumb or
of any finger shall equal the loss of one-half of such thumb or
finger and the weekly compensation shall be paid during one-half of
the time but not to exceed one-half of the total amount for the loss
of such thumb or finger.
g. The loss of more than one phalange shall equal the loss of
the entire finger or thumb.
h. For the loss of a great toe, weekly compensation during
forty weeks.
i. For the loss of one of the toes other than the great toe,
weekly compensation during fifteen weeks.
j. The loss of the first phalange of any toe shall equal the
loss of one-half of such toe and the weekly compensation shall be
paid during one-half of the time but not to exceed one-half of the
total amount provided for the loss of such toe.
k. The loss of more than one phalange shall equal the loss of
the entire toe.
l. For the loss of a hand, weekly compensation during one
hundred ninety weeks.
m. The loss of two-thirds of that part of an arm between the
shoulder joint and the elbow joint shall equal the loss of an arm and
the compensation therefor shall be weekly compensation during two
hundred fifty weeks.
n. For the loss of a foot, weekly compensation during one
hundred fifty weeks.
o. The loss of two-thirds of that part of a leg between the
hip joint and the knee joint shall equal the loss of a leg, and the
compensation therefor shall be weekly compensation during two hundred
twenty weeks.
p. For the loss of an eye, weekly compensation during one
hundred forty weeks.
q. For the loss of an eye, the other eye having been lost
prior to the injury, weekly compensation during two hundred weeks.
r. (1) For the loss of hearing, other than occupational
hearing loss as defined in section 85B.4, weekly compensation during
fifty weeks, and for the loss of hearing in both ears, weekly
compensation during one hundred seventy-five weeks.
(2) For occupational hearing loss, weekly compensation as
provided in chapter 85B.
s. The loss of both arms, or both hands, or both feet, or
both legs, or both eyes, or any two thereof, caused by a single
accident, shall equal five hundred weeks and shall be compensated as
such; however, if said employee is permanently and totally disabled
the employee may be entitled to benefits under subsection 3.
t. For permanent disfigurement of the face or head which
shall impair the future usefulness and earnings of the employee in
the employee's occupation at the time of receiving the injury, weekly
compensation, for such period as may be determined by the workers'
compensation commissioner according to the severity of the
disfigurement, but not to exceed one hundred fifty weeks.
u. In all cases of permanent partial disability other than
those hereinabove described or referred to in paragraphs "a"
through "t" hereof, the compensation shall be paid during the
number of weeks in relation to five hundred weeks as the reduction in
the employee's earning capacity caused by the disability bears in
relation to the earning capacity that the employee possessed when the
injury occurred.
v. If it is determined that an injury has produced a
disability less than that specifically described in the schedule
described in paragraphs "a" through "t", compensation shall
be paid during the lesser number of weeks of disability determined,
as will not exceed a total amount equal to the same percentage
proportion of said scheduled maximum compensation.
3. Permanent total disability.
a. Compensation for an injury causing permanent total
disability shall be upon the basis of eighty percent per week of the
employee's average spendable weekly earnings, but not more than a
weekly benefit amount, rounded to the nearest dollar, equal to two
hundred percent of the statewide average weekly wage paid employees
as determined by the department of workforce development under
section 96.19, subsection 36, and in effect at the time of the
injury. The minimum weekly benefit amount is equal to the weekly
benefit amount of a person whose gross weekly earnings are
thirty-five percent of the statewide average weekly wage. The weekly
compensation is payable during the period of the employee's
disability.
b. Such compensation shall be in addition to the benefits
provided in sections 85.27 and 85.28. No compensation shall be
payable under this subsection for any injury for which compensation
is payable under subsection 2 of this section. In the event
compensation has been paid to any person under any provision of this
chapter, chapter 85A or chapter 85B for the same injury producing a
total permanent disability, any such amounts so paid shall be
deducted from the total amount of compensation payable for such
permanent total disability.
4. Credits for excess payments. If an employee is paid
weekly compensation benefits for temporary total disability under
section 85.33, subsection 1, for a healing period under section
85.34, subsection 1, or for temporary partial disability under
section 85.33, subsection 2, in excess of that required by this
chapter and chapters 85A, 85B, and 86, the excess shall be credited
against the liability of the employer for permanent partial
disability under section 85.34, subsection 2, provided that the
employer or the employer's representative has acted in good faith in
determining and notifying an employee when the temporary total
disability, healing period, or temporary partial disability benefits
are terminated.
5. Recovery of employee overpayment. If an employee is paid
any weekly benefits in excess of that required by this chapter and
chapters 85A, 85B, and 86, the excess paid by the employer shall be
credited against the liability of the employer for any future weekly
benefits due pursuant to subsection 2, for a subsequent injury to the
same employee. An overpayment can be established only when the
overpayment is recognized in a settlement agreement approved under
section 86.13, pursuant to final agency action in a contested case
which was commenced within three years from the date that weekly
benefits were last paid for the claim for which the benefits were
overpaid, or pursuant to final agency action in a contested case for
a prior injury to the same employee. The credit shall remain
available for eight years after the date the overpayment was
established. If an overpayment is established pursuant to this
subsection, the employee and employer may enter into a written
settlement agreement providing for the repayment by the employee of
the overpayment. The agreement is subject to the approval of the
workers' compensation commissioner. The employer shall not take any
adverse action against the employee for failing to agree to such a
written settlement agreement.
6. Professional athlete. For purposes of subsection 2,
paragraph "u", a determination of the degree of permanent
disability of an individual who was injured in the course of
performing as a professional athlete shall not be determined based
upon employment as a professional athlete but shall be determined
based upon other occupations the individual has previously performed
or was reasonably suited to perform at the time of the injury.
7. Successive disabilities.
a. An employer is fully liable for compensating all of an
employee's disability that arises out of and in the course of the
employee's employment with the employer. An employer is not liable
for compensating an employee's preexisting disability that arose out
of and in the course of employment with a different employer or from
causes unrelated to employment.
b. (1) If an injured employee has a preexisting disability
that was caused by a prior injury arising out of and in the course of
employment with the same employer, and the preexisting disability was
compensable under the same paragraph of subsection 2 as the
employee's present injury, the employer is liable for the combined
disability that is caused by the injuries, measured in relation to
the employee's condition immediately prior to the first injury. In
this instance, the employer's liability for the combined disability
shall be considered to be already partially satisfied to the extent
of the percentage of disability for which the employee was previously
compensated by the employer.
(2) If, however, an employer is liable to an employee for a
combined disability that is payable under subsection 2, paragraph
"u", and the employee has a preexisting disability that causes
the employee's earnings to be less at the time of the present injury
than if the prior injury had not occurred, the employer's liability
for the combined disability shall be considered to be already
partially satisfied to the extent of the percentage of disability for
which the employee was previously compensated by the employer minus
the percentage that the employee's earnings are less at the time of
the present injury than if the prior injury had not occurred.
c. A successor employer shall be considered to be the same
employer if the employee became part of the successor employer's
workforce through a merger, purchase, or other transaction that
assumes the employee into the successor employer's workforce without
substantially changing the nature of the employee's employment. Section History: Early Form
[S13, § 2477-m9; C24, 27, 31, 35, 39, § 1394--1396; C46, 50,
54, 58, § 85.33--85.35; C62, 66, 71, 73, 75, 77, 79, 81, § 85.34; 82
Acts, ch 1161, § 8--11] Section History: Recent Form
87 Acts, ch 111, § 2, 3; 94 Acts, ch 1065, §5--7; 96 Acts, ch
1186, §23; 97 Acts, ch 48, § 2; 98 Acts, ch 1061, § 4, 11; 98 Acts,
ch 1160, §1; 2004 Acts, 1st Ex, ch 1001, §10, 11, 18; 2005 Acts, ch
19, §26; 2006 Acts, ch 1010, §45; 2008 Acts, ch 1032, §170
Referred to in § 85.27, 85.33, 85.59, 85.60, 85.62, 96.7(2a),
96.23, 279.40 Footnotes
Legislative intent regarding successive disabilities; 2004 Acts,
1st Ex, ch 1001, § 20, 21