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Justin Brady: From Iowa podcast.com, I’m Justin Brady. And what happens when you’re injured at work and you get into the gray area of getting paid? Like how, how much should you be paid? Like, should you be paid a little bit? Should you be paid a lot? Uh, should you ask for it? Is someone gonna offer it? Is there a legal thing you should do? I got nothing. I have absolutely no idea. This is one of those questions you don’t really think of until it’s probably too late. And so to anticipate those needs, ’cause this is what we do on Iowa podcast.com is to anticipate the questions you’re going to ask before you ask them. We brought crowd favorite Nate Boulton, Iowa workers rights attorney at Hedberg and Boulton to answer this questions and deep dive into the topic, which is what you’re good at. So thanks for coming back in here.

Nate Boulton: Thanks for, for asking these questions. ’cause they are really important.

Justin Brady: They’re, they’re important. They’re hard and they’re awkward. And no one, like, it’s just one of those things that no one ever thinks about until it’s too late. And so what we’ve noticed is people do Google stuff and they look it up on YouTube, and so ideally this is going to be the perfect resource. If you’re injured at work and you think the whole industry’s kind of weird, you don’t know how to decode it. There are some not really good players out there. It’s perfect place for you. So, uh, obviously injuries at work sometimes aren’t just a hole. You leave, you don’t come back, you can’t work thing. Uh, sometimes it’s just, it’s a matter of like income loss when you’re injured at work is a big deal. So there are several areas I want to drill down, but broadly when you’re facing that, like what’s the big first step someone should do? Yeah.

Nate Boulton: So income loss is a huge deal, right? Most people can’t really make their own personal finances for their family work if they go two to four weeks without a paycheck, right? Right. That’s just a, an absurdly long time. And so if you have a serious workplace injury, maybe it’s not even a permanent one, but temporarily is a big deal while you’re off work healing from. A surgery or, or just have a, uh, you know, physical therapy that’s gonna prevent you from lifting more than, you know, 50 pounds for a a certain set time period. And your employer can’t accommodate that. There’s gonna be some time where you’re without income. Where does work Comp come in. Where do those benefits, you know, start and, and how much do you get? Those are huge questions. And as you just stated, people don’t like to talk about earnings. They don’t like to talk about what they make or how they should be paid. They’re really tough topics to bring up. So when you get to that point and you have an injury. And you have that realization, oh, oh my gosh, I’m not going to have my weekly paycheck come in next week. What do I do? Well, that is where work comp benefits are supposed to be paid on time every week. That wait, that those work comp wages are due. But you also have to know. Is it the right number being paid? How, how is that calculated and how do I, how do I know when those benefits will stop if I’m returned to work but not making full pay? Those are major issues and we’ll kind of identify a few of those one by one. Um, first one is. Once you’re off work, what do you get paid? You’re basically paid, um, an approximation of your 13 weeks prior to the injury. Earnings averaged out and then reduced a little bit because work comp benefits are not designed to be actual replacement wages. They’re a little bit less than what you normally would make, so you should be getting a a a instead of a paycheck. A work comp benefit check. That ends up being about two thirds of your regular pay or 80% of your take home pay. Um, not an exact science in terms of how that number is calculated, but that’s generally the kind of ballpark we look at. Um, for, for those work comp benefits, those should happen every week. You’re off work for a work related injury. Now, if your work injury is denied as being work related. Those benefits aren’t coming

Justin Brady: Mm. And

Nate Boulton: that’s a really stressful time for most injured workers.

Justin Brady: Sure, absolutely. So this is, uh, like a work comp, lost earning capacity benefits. This is like the official term, right? Right. So the, you you mentioned lost earning, like people aren’t going to get necessarily full-time, like a hundred percent of benefits. There’s some percentage, and you mentioned it’s not this exact science work comp benefits, so. I guess if it’s not an exact science, maybe it’s more of an art form. How are those numbers? How, like how do we decode those numbers? How do we know the percentage of take home pay we’re going to get from work comp benefits?

Nate Boulton: And so there are a lot of things that you kind of input into the formula to figure out what your work comp rate is. The biggest one is 13 representative weeks of your earnings prior to injury. I say representative because sometimes there’s a. Plant shutdown in one of those weeks, that would be an unfairly low week to include. ’cause you didn’t work for a few days or even a full week. And so that’s not reflective of your normal earnings. So we look for the 13 representative weeks to get that average weekly wage. And then we plug that into, um, how many exemptions do you have for your tax filing purposes and put that into. A table that tells us what your work comp rate is. But there can be a whole lot of difference between what an insurance company thinks is your representative 13 weeks and what you think. And a lot of times they will include weeks that are unfairly low saying, well, that’s what you work that week. And, and for the injured worker, they’re saying, well, that’s, that’s not representative because I normally work. 40 plus hours a week and you’re including a week of only 30 hours. That’s not normal. We need to include a different week or replace that with a different week. The other thing that’s kind of frustrating for injured workers is if they work a lot of overtime, their overtime pay is reduced to straight time pay for work comp purposes.

Justin Brady: be kidding. Okay,

Nate Boulton: it’s really unfair. It’s something that, um, injured workers have, have. Routinely said that that really needs to be changed in the legislature and, and probably should be because you are basing your family’s income on that normal overtime

Justin Brady: pay, of course

Nate Boulton: To have it reduced down to the straight hours is not reflective of your earning capacity is not reflective of your actual earnings. So, um, that’s something that surprises people if they work a lot of overtime that no, their work comp rate isn’t gonna be close to 80% of their take home. It’s gonna be closer to. 60 to 70% of their take home because of that reduction in their overtime rate to straight pay, which is really frustrating.

Justin Brady: This is interesting because most people may assume in a work comp case when you’re injured at work and you’re gonna take a reduction in pay, there are like buckets, right? There’s an A, B, C plan and you fit into the B plan or something like

Nate Boulton: that, right? Right.

Justin Brady: right? That’s not true at all. It actually sounds like it’s highly customized and tailored to the individual worker, how many hours they work, what kind of job it was. And that is why there, that’s why it’s not this clear cut thing, so it, it kind of sounds like a bug, but in reality it’s a feature because we want people to be treated fair. And if there are just several classes. Not everybody fits into these tight little buckets. That’s why there’s a little bit of I problem solving and maybe you said we put it into a table and we figure that out. So it’s not a one size fits all kind of

Nate Boulton: It’s not, and you don’t want it to be, you want your earnings to be represented in what you get compensated for work comp. So putting you into a, a broad generalized bucket of class A or class B benefits, that doesn’t work because that’s not how you’re balancing the family budget.

Justin Brady: Yeah, that’s, no one balances the family budget that way. That’s like literally no one’s works in a situation is like that. Especially in the case of an injury at work where there’s more, uh, manual labor and more nuance to that job. It’s not like you’re going in and tapping at a computer, like is what basically I sit behind a microphone, tap at a computer. It’s the same thing every day. So it’s totally different. And so it makes sense why there would be more problem solving and table and calculations. Uh. Adding a little bit more complexity to the injured at work discussion is it’s, again, it’s not a black and white kind of thing. There aren’t these certain periods that you go through, you were injured, now you’re not, and now it’s over. How do, how do, how does, like in a work comp situation, how do healing periods factor into

Nate Boulton: that? Yeah, so usually if you have a a, a significant injury, there’s gonna be a time where you probably can’t work at all in the beginning of that injury

Justin Brady: of course, yeah.

Nate Boulton: Yeah. If you, uh, suffer a rotator cuff tear or, or you know, a significant spinal injury, you’re gonna be off work until surgery and then. After surgery, there’s gonna be a healing period from the surgery, and eventually you’re gonna be returned to work with restrictions. So phase one is what we call temporary total disability. In those cases where you’re completely unable to work, you can’t go in and work some accommodated work. Position you are in the, the throes of the injury process and until you get to, uh, surgery or whatever that’s gonna address that, you’re probably not able to work at all. Then once you hit surgery, you’re gonna have a continuation of that temporary total disability period, because obviously you’re not gonna walk right off the operating table and into the plant. There’s gonna be a time for recovery from the healing

Justin Brady: That’s only Hollywood.

Nate Boulton: That’s right. That’s right. That works in some movies. But here, in reality, you’re gonna have a few, at least a few weeks of a period where your, your surgeon’s gonna say, you shouldn’t be doing really much of anything until X number of weeks has passed, and then maybe you return to light duty work. And that’s where things start to get complicated because the employer has to make reasonable. Offers of work a suitable offer of work for that individual. So you have to look at the work restrictions. If you can’t lift more than 25 pounds, the employer has to find a job that you don’t lift more than 25 pounds. Otherwise, you’re continuing on that total disability period. That said, it doesn’t have to be your normal job. They can have you come in and you were a tire builder when you were injured. They have you come in and. Do like office type clerical work. That’s a, that’s a fine suitable offer of work as long as it’s within the restrictions, even though it’s not what you used to do. It’s the employer deciding what is of value to them with your position. So you’ll go in and you’ll work that light duty. Sometimes light duty work means restricted hours. You’re not supposed to work more than 30 hours a week, and you’re usually working 40 to 60 hours a week. Mm-hmm. That’s where we, what we call temporary partial disability comes in where you are not making the full extent of your normal wages, but at the same time, you’re not gonna get full work comp benefits as if you’ve missed the whole week of work. Temporary partial disability is designed to kind of fill that gap between your actual earnings and what should have been your work comp earnings for that week. And so that can extend for a while. And then finally, once you get to what’s called maximum medical improvement. We know your permanent work restrictions, we know what you can and can’t do, what your limitations are. That’s when it’s really important to determine, okay, can I go back to the same job, make the same wage, and and go along, or am I gonna have to change positions or even employers as a result of this? And that’s where loss of earning capacity can come in for certain types of injuries that qualify for lost earning capacity benefits.

Justin Brady: these are like, as a worker’s rights attorney, these are all the things you’re calculating and working through with your clients. Right? Like that’s a, that’s like a Rubik’s cube of like intellectual problem solving

Nate Boulton: It, it, it is a lot to go through and, and it’s stressful, right? If, if an individual is sitting there saying, okay, I, I, I just had major surgery and I’m a tire builder. It’s a really hard thing to have that uncertain period of can I still be a tire builder after the recovery process is done, am I gonna be told I can’t lift more than 30 pounds? I can’t work. Above shoulder height, right? Like those are gonna be things that take you outta that profession and now you’re worried about what’s next. So this is a really stressful process to go through, and when you add all that uncertainty of how the benefits work and what you’re supposed to be paid, it’s a really tough thing. And that’s why a lot of people turn to an attorney earlier on in the process to have someone to call and say. Is this right? Is this normal? Can they do this? Are they returning me to work too soon and what can I do about it? Those are major issues that happen during the lifespan of that work comp case for serious injuries.

Justin Brady: not to mention like when you’re looking at the PO possible or potential permanent or temporary end of your career, it’s like an identity crisis. It’s because for me, in, in moments in my life, the, the most stupid moments in my life is when I had like a failure of some kind and I didn’t like get the right kind of support or team member on my, like that, those, those are the moments in my life I’m like. I was pretty dumb. Like I just thought I was gonna wing it. I thought I was gonna figure it out. I did not figure it out. It was pretty stupid. And so that’s the reason we have experts is because they can lead us through those moments. Especially if you’re going through a moment like that. When you have kind of an identity crisis, you’re not thinking straight like it, it’s, it’s really incredible to have that guy. I’m not brown-nosing. I’m like, this is just reality.

Nate Boulton: a, it’s a big deal. If you think about it, when you introduce yourself to someone, you obviously, you tell ’em their, your

Justin Brady: name. A lot of people tell ’em your career.

Nate Boulton: question is, what do you

Justin Brady: Yeah. ’cause people like their jobs

Nate Boulton: if somebody has been, uh, an iron worker for 30 years. When they get asked that question after a serious injury, that is a major thing

Justin Brady: Yeah. It’s a big deal.

Nate Boulton: big deal. I used to be an iron worker and I don’t know what’s next. Right. That’s a big thing for someone to go through and, and that’s just the kind of emotional part of it. But then there’s the reality of it. If you were working in a heavy industrial field, you’re used to to earning substantial wages because it is hard work, right? And it is well compensated and then. What’s next? And people say, well, you could go be a, you know, Walmart greeter is right. A lot of people say, well, you can, you can still work. Yeah. Well, there’s a big difference between a career have these skills

Justin Brady: that I’ve built over 20 years.

Nate Boulton: that you, you’ve got certifications, you’ve, you, you know, you’re a journeyman electrician or whatever. Right. And now you’re being told, well, because of. The lifting, the bending, the stu, you just can’t do it anymore. Don’t tell me I can just go be a Walmart greeter. Right, right. I, yeah, I could go work in, in, in retail. I’m gonna make a fraction of what I used to make, and I’m gonna be completely out of my element in those fields because for the last 20 years I’ve been out building things right. Or I’ve been out making tires. That’s a major transition to ask of someone. And so when those things happen, those work comp benefits are, are designed. To help kind of soften the blow of that tr transition. They’re not gonna completely replace all the wages you had had for the next 20 years. Plus, you know, wage increases and benefits that have improved. You’re not gonna get a complete, you know, made whole remedy through the work comp system, but it is gonna soften the blow. And that’s the idea. At

Justin Brady: what point do you seek out social security then? Because do you just say, well, uh, call, you know, hold up the, the white flag. I’m gonna go into a totally different career if you do that and are, are you like sacrificing social security? Do you do both? What’s the process there? Yeah,

Nate Boulton: so social security is designed to be there for when you are basically completely unable to get gainful employment. Right? Got that. That not just your normal profession is out of reach for you, but really all professions are gonna be out of

Justin Brady: exhaust at all opportunities. That’s

Nate Boulton: where you really can’t work in any reasonable field. Like

Justin Brady: Like

Nate Boulton: used to have an expert witness in work comp. You say, well, you could be a tube operator at a bank. Well, there’s no separate position for tube operators at banks. Like that doesn’t make sense. And that’s not a normal job out for gainful employment for people. So, so no that if you’re limited to those types of very irregular, like one another expert say we can be a poll worker, we wanna talk about limited hours, you can be a poll worker. Two or three times a year, of

Justin Brady: Of course.

Nate Boulton: and so there are those three days I’m covered. The rest of the time I’m not. So Social security disability is designed to say, okay, the jobs are so irregular on the open market for you. We, we acknowledge you’re probably not going to have gainful employment again. That’s what that benefit is for. But that’s an all or nothing thing. Work comp comes in as the in-between. Okay. You may not be able to work as, you know, a lineman. But now you can work as, um, you know, a, an instructor or something and you’re gonna make a third of what you were normally making. Well, that’s where work comp comes in to say, okay, then you have a 60, 70%. Industrial disability or loss of earning capacity. So we’re gonna provide some work comp benefits to cover that reduced earning capacity from this injury. So it’s not an all or nothing proposition in work comp the way it is in Social Security disability. Now, if you have a, a serious traumatic injury that says, alright, you are limited to sedentary work, you have the skill sets that show that you’re essentially a manual labor person for a long time, it’s gonna be really hard for you to transition. Work comp can give you permanent total disability saying that, okay, we don’t expect you to return to the open market and get gainful employment, so you’re gonna get permanent total disability work comp benefits for every week for the rest of your life until that disability resolves or, or you die. And then you can file for Social Security Disability on top of that, but you don’t get the full social security benefit. We don’t allow you to stack those benefits together. Mm-hmm. There’s gonna be an offset for what you’re getting through work comp. For the social security benefits, and it may be a complete offset, it may be a partial offset, but you don’t just get to stack the benefits on top of each other.

Justin Brady: Last question. There are, uh, we mentioned earlier how in a worker’s rights situation in an, in an injury situation, it’s not like a, a, b, and C bucket, like it’s customized as tailored by job.

Nate Boulton: right.

Justin Brady: But there are a few terms that are important here. There are like almost categories of injury, if that makes, if I can call it that. Yes. There’s like a permanent injury where it’s like total disability. There’s odd lot. Yeah. I don’t know what that means. It’s like kind of like a phase in kind of you can kind of work but can’t. And then there’s also like scheduled member, right, which is like actually defines in legal code. Body parts that are like, can you explain these three things? Yeah. Permanent, odd lot scheduled member. That’s probably our final question.

Nate Boulton: yeah, yeah. So permanent total disability is the thing where we just say, you’re likely not going to be able to work again. Right? That’s the weekly benefit for the rest of your life. While this disability exists, we don’t expect you to be able to. Recover economically from this in any way. So those are pretty rare that you see those awards made. Second from that is the odd lot, and that’s where we’re talking about those, those positions where, okay, you might be able to get a job here and there, but those are not readily accessible jobs on the open market. So it’s, you’re an odd lot employee. You can take take work occasionally, but not enough that is actually gonna support you. In any meaningful way. So that odd lot employee is considered permanently, totally disabled, even though they might be capable of some very limited work. Mm-hmm. So that’s kind of a second way to get to that permanent total disability benefit. Then there’s the loss of earning capacity or industrial loss that says, okay, you’ve lost about two thirds of your earning capacity or a third of your earning capacity. We’re gonna take your. Percentage of economic loss against 500 total weeks of benefits and essentially say, here is a, a set of transition dollars for you to figure out how to reemerge in the marketplace and, and essentially help accommodate that disability for you economically. And then the last one is the scheduled member. Disability, and that’s the one that people get really frustrated hearing because yes, the legislature has predetermined the value of a variety of your body parts. So your thumb, for example, cut it off. It’s like 50 weeks of benefits to lose your thumb. Nobody wants to lose their thumb for 50 weeks of wages. That’d be a terrible trade. You’d never accept that. But that the legislature has said, your, your arm is worth 250 weeks. Of work comp benefits. So if we cut off your arm, that’s what you would get. Very rarely are there whole arm injuries, right? Like it happens. But usually we’re talking about damage to your arm. Uh, and that’s where a doctor is going to assign a percentage of disability, 10% of your arm, for example, 10% of the 250 weeks is 25 weeks of benefits. That’s a really unfair system. If your job is. In a meat packing plant. Mm-hmm. And we’re talking about your right hand or your right arm, and you’re right-handed. Now it’s damaged. You can’t really use it to do that line of work, and we’re gonna give you 25 weeks of work comp benefits and send you on your way. It’s a really hard thing for people to accept that that is what our law says is fair.

Justin Brady: Yeah. There

Nate Boulton: There are exceptions to that and there are a lot of those exceptions. Um, if the, the injury affects other body parts. If the injury causes a mental injury, which.

Justin Brady: which

Nate Boulton: Pretty common. If that meat packer loses their career over a simple scheduled member case, yeah. They’re gonna have depression and anxiety and things that dramatically affect them because they just lost their career. Right? So, um, absolutely those are called physical mental injuries, where as a result of the physical injury, there’s a mental component to it. And then there’s a whole other complicated thing called the second injury Fund of Iowa, where if you have a pre-existing disability to some other body part. And now injure a scheduled member, uh, a different area. The com combination of those two injuries entitled you to loss of earning capacity benefits if you lose your job.

Justin Brady: Unbelievable.

Nate Boulton: are a lot of ways that you can get to that. But on, on the very basic level, if you have a arm injury, a foot injury, a hand injury, you’re kind of stuck with that predetermined one size fits. Saw your foot is worth this number of weeks, or your hand is worth this number of weeks unless you have an attorney. Help you find some exception to that if you’ve got a loss of earning capacity associated with those injuries. But that’s not always possible. There’s, there’s some injuries that are simply gonna be scheduled. Member injuries despite their, you know, effect on your employability. You may just be stuck with a percentage of that body part number of weeks.

Justin Brady: The injuries at work discussion is extremely complicated and it’s obviously this is good information for people that are right in the middle of that situation. Um, obviously the wise takeaway here is don’t go it on your own. That would be kind of silly. So if people need help, if they want to ask you questions, what’s the easiest way to do that?

Nate Boulton: Yeah, you can go to workerslawyers.com, that’s our website, and you can find our contact information. You can email us through that, or you can, you can call us and ask us those questions. Uh, but it’s, it’s important to start talking with an attorney. Most attorneys will give you a free initial consultation on work comp issues. Hmm. So you can talk with them, explain what’s going on. Uh, sometimes it’s as simple as saying, Hey, it sounds like things are going really well. Gimme a call back later. If things, you know, change, um, you, you don’t always need an attorney right away. Um, and I, I frequently tell people, look, the employer is authorizing your medical care. They’re paying you weekly work comp benefits right now. You don’t need me to be kind of the third wheel and interrupt that. But you may wanna come back to me when it’s time to return to work, and you don’t think that the offer of work is suitable, or it’s time to give you your permanent disability benefits. You want another pair of eyes on that to make sure that that number is correct.

Justin Brady: Like the, the best performers in the world have like, like Tom Brady has a throw coach, right? Like the best performers in the world have people that observe and say, you need to make this little adjustment. And so, I mean, even, even if you’re Tom Brady, you still need outside help and perspective. Nate, thanks for watching Tom. Right. Nate Boulton, workers’ rights attorney at Hedberg and Boulton workerslawyers.com free consultation, which is great. Nate, thanks so much for, uh, coming in here again.

Nate Boulton: Always a pleasure, Justin. Thanks.