On September 25, 2019 the Iowa Court of Appeals ruled in favor of one of my clients where we were requesting a second IME at the expense of the Defendants in the case of Ostwinkle v. Mathy Construction Company.
The background of the case is as follows. The worker suffered an accepted low back injury on July 23, 2013.
On August 12, 2016 Chad Abernathey, M.D. provided an impairment rating for the Employer and Insurance Carrier.
We believed the impairment rating of Dr. Abernathey was too low, and on March 20, 2017 we filed a Petition for an Independent Medical Examination.
We did obtain an IME report from Robin Sassman, M.D. dated July 13, 2017 based on the March 20, 2017 Petition for Independent Medical Examination. The Defendants did pay for Dr. Sassman’s July 13, 2017 IME report.
After Dr. Sassman’s first IME report was issued on July 13, 2017 the Defendants authorized further treatment and evaluation of the Claimant’s low back by a number of medical care providers, including Timothy J. Miller, M.D., David Resnick, M.D., Guy McCaw, M.D., Cassim Igram, M.D. and Joseph Chen, M.D.
On June 7, 2018 the nurse case manager for the Employer and Insurance Carrier wrote to Dr. Chen and requested another impairment rating concerning Claimant’s low back.
Based on the nurse case manager’s letter of June 7, 2018, Dr. Chen issued an impairment rating on June 8, 2018. We believed that Dr. Chen’s June 8, 2018 impairment rating was too low and therefore filed a Petition for Independent Medical Examination on August 23, 2018.
The defense argument against having to pay for a second IME was that Iowa law does not require the employer to reimburse an injured employee for more than one IME for the same injury.
My arguments on behalf of my client started with Iowa Code Section 85.39 which provides in relevant part as follows:
“If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the Commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer for the reasonable fee for a subsequent examination by a physician of the employee’s own choice, and reasonable necessary transportation expenses incurred for the examination.” (Emphasis added).
Iowa Code Section 85.39 does not state that a Claimant is only entitled to one IME. Instead, Section 85.39 provides that if the employer obtains an impairment rating, the Claimant is entitled to an IME at the employer’s expense. As outlined above, the Defendants first obtained an impairment rating from Dr. Abernathey, and then obtained an impairment rating from Dr. Chen. The Claimant was entitled to an IME at the employer’s expense to respond to the second defense impairment rating that the defense obtained from Dr. Chen.
The Defendants’ argument that the Claimant is only entitled to one IME at the expense of the Defendants relied in part on the case of Larson Manufacturing Co., Inc. v. Thorson, 763 N.W.2d 842 (Iowa 2009).
However, the Thorson case is distinguishable on the facts of that case and the legal issues that were analyzed.
First, in the Thorson case the Defendants were contesting compensability, and had never obtained an impairment rating concerning the Claimant. Thorson, 763 N.W.2d at 846-849. In the present case the Defendants had admitted liability and had obtained defense impairment ratings first from Dr. Abernathey and later from Dr. Chen.
Second, the Thorson Claimant’s second IME request was not in response to a second impairment rating by the defense, but rather because appeals and a remand resulted in the case being retried eight years after the original impairment rating and the Claimant strategically felt that he needed a more recent expert opinion. Thorson, 763 N.W.2d at 861, note 12.
Third, the Thorson case did not examine the issue faced in this appeal of whether a Claimant is entitled to an independent medical examination at the expense of the Employer and Insurance Carrier for each impairment rating that the Employer and Insurance Carrier obtain.
The Defendants’ second argument against paying for a second IME was based on a faulty interpretation of Iowa Code §85.39. The defense argument is that Iowa Code §85.39 only provides for one IME for a Claimant based on emphasizing one word in the statute:
“If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee’s own choice, and reasonably necessary transportation expenses incurred for the examination.” (Emphasis by the defense.)
This defense argument should be rejected on two grounds. First, Iowa law is clear that statutory interpretations should be based on the entirety of a statute rather than isolated words or phrases. Brewer-Strong v. HNI Corporation, 913 N.W.2d 235, 251 (Iowa 2018). As set forth in the Claimant’s interpretation, looking at the whole statute makes it clear that each time the defense obtains an impairment rating, the Claimant is also entitled to an impairment rating.
Secondly, the workers’ compensation statutes should be liberally construed in favor of the worker. Des Moines Area Regional Transit Authority v. Young, 867 N.W.2d 839, 842 (Iowa 2015).
The Court of Appeals’ analysis of the dispute was as follows:
“The Employer claims Iowa Code Section 85.39 only permits a single reimbursable IME for the same injury. Ostwinkle claims the section permits a claimant a second IME at the employer’s expense to respond to a second employer impairment rating. The Commissioner found the second review-reopening petition constituted a new petition under which Ostwinkle had not yet had an IME reimbursed. The district court found that because a new evaluation had been made by a physician retained by the Employer in the new review-reopening proceeding and Ostwinkle believed the evaluation to be too low, section 85.39 entitled him to a subsequent examination by a physician of his choosing.
The Employer relies on Larson Manufacturing Co. v. Thorson, 769 N.W.2d 842, 861 n.12 (Iowa 2009), where the supreme court held the commissioner did not have the authority to require an employer to pay for a second evaluation in response to new medical opinions in a remand proceeding. However, we find the more relevant case for our analysis is Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387 (Iowa 2009), which examined an IME reimbursement under section 85.39 in the context of a review-reopening petition.
‘The review-reopening proceeding. . . is a new and distinct proceeding apart from the original arbitration action, as the claimant had a burden to prove something different than he proved at the arbitration hearing.’ Kohlhaas, 777 N.W.2d at 395. When a claimant seeks to reopen an award, the commissioner evaluates ‘the condition of the employee, which is found to exist subsequent to the date of the award being reviewed.’ The commissioner is not supposed to ‘redetermine the condition of the employee which was adjudicated by the former award.’’ Id. At 391 (quoting Stice v. Consol. Ind. Coal Co., 291 N.W. 452, 456 (Iowa 1940)).
‘[T]he legislature meant to allow the employee to obtain a disability rating from a physician of his ‘own choice’ when the physician chosen by the employer gives a disability evaluation unsatisfactory to the employee.’ IBP, Inc. v. Harker, 633 N.W.2d 322, 327 (Iowa 2001); see also Des Moines Area Reg’l Transit Auth. V. Young, 867 N.W.2d 839, 847 (Iowa 2015) (‘Th[e] process permits the employer, who must pay the benefits, to make the initial arrangements for the evaluation and only allows the employee to obtain an independent evaluation at the employer’s expense if dissatisfied with the evaluation arranged by the employer.’) ‘[S]ection 85.39 does not expose the employer to liability for reimbursement of the cost of a medical evaluation unless the employer had obtained a rating in the same proceeding with which the claimant disagrees.’ Kohlhaas, 777 N.W.2d at 394 (emphasis added).
We find this case falls within the set of facts implied by the court in Kohlhaas that could justify the authorization of reimbursement for a new IME. See id. At 395 (finding a review-reopening proceeding was new and distinct from the arbitration proceeding though, in the instant case, an employee was not entitled to reimbursement for an IME under 85.39 because the employer did not obtain a new disability evaluation in connection with new proceeding). The original arbitration action ended in a November 2016 ruling for temporary and healing period benefits, and the parties stipulated the permanent disability question was not ripe for determination at that time. The first review-reopening petition was voluntarily dismissed. This review-reopening petition is to determine the worker’s permanent condition, which was now ripe for determination.
In this new proceeding, ten months after the worker’s first review-reopening petition had been dismissed and following additional treatment, the Employer obtained a new evaluation and new impairment rating to be used to determine permanent disability. The Claimant is seeking to rebut the new disability evaluation in connection with this new proceeding. We affirm the commissioner’s grant of reimbursement for the worker’s medical evaluation.”