In one of my cases the Defendants obtained an impairment rating of my client’s injuries, and I was able to obtain an independent medical exam with a doctor of my choice to obtain a competing impairment rating at the expense of the Defendants. That part of the case is very standard.
The unusual part was that the Defendants then obtained a second impairment rating. I filed a Petition to obtain a second independent medical exam with a doctor of my choice at the expense of the Defendants.
I went ahead and got the independent medical exam, and have since been fighting with the Defendants about getting reimbursed for the second independent medical exam. I won the dispute in front of the Workers’ Compensation Commissioner. That led to an Appeal by the Defendants to the District Court where I also won.
Most recently the Defendants appealed to the Iowa Supreme Court trying to avoid having to pay for the second independent medical exam. I think I am going to win again.
Set out below is a modified version of my Appeal Brief to the Iowa Supreme Court explaining our interpretation of the law. My brief is in part responding to the Appellate Brief of the Defendants. This is a very short Appellate Brief because it is only dealing with a limited issue. Appeal Briefs are usually much longer. I have changed the names and dates for privacy reasons.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
- WHETHER THE WORKERS’ COMPENSATION COMMISSIONER AND THE DISTRICT COURT CORRECTLY ORDERED THE DEFENDANTS TO PAY FOR A SECOND INDEPENDENT MEDICAL EXAMINATION FOR THE CLAIMANT WHERE THE DEFENDANTS HAD OBTAINED A SECOND IMPAIRMENT RATING
STATEMENT OF FACTS
Claimant suffered an accepted low back injury on July 23, 2013. (Defense Answer filed on approximately February 7, 2017).
On August 12, 2016 John Smith, M.D. provided an impairment rating for the Employer and Insurance Carrier. (See attachment to IME Petition filed March 20, 2017).
Claimant believed the impairment rating of Dr. Smith was too low, and on March 20, 2017 Claimant filed a Petition for an Independent Medical Examination. (IME Petition filed March 20, 2017).
The Claimant did obtain an IME report from Mary Jones, M.D. dated July 13, 2017 based on the March 20, 2017 Petition for Independent Medical Examination. The Defendants have paid for Dr. Jones’ July 13, 2017 IME report.
Since Dr. Jones’ first IME report was issued on July 13, 2017 the Defendants have authorized treatment and evaluation of the Claimant’s low back by a number of medical care providers, including Alex Brown, M.D. (See medical records of Mike Adams, M.D., Rick Boston, M.D., Matt Cleveland, M.D., Jason Detroit, M.D. and Alex Brown, M.D.).
On June 7, 2018 the nurse case manager for the Employer and Insurance Carrier wrote to Dr. Brown and requested another impairment rating concerning Claimant’s low back. (See attachment to Resistance filed September 7, 2018).
Based on the nurse case manager’s letter of June 7, 2018, Dr. Brown issued an impairment rating on June 8, 2018. (See attachment to Resistance filed September 7, 2018). The Claimant believed that Dr. Brown’s June 8, 2018 impairment rating was too low and therefore filed a Petition for Independent Medical Examination on August 23, 2018 which is the subject matter of this Appeal. (Petition for IME filed August 23, 2018).
- THE WORKERS’ COMPENSATION COMMISSIONER AND THE DISTRICT COURT CORRECTLY ORDERED THE DEFENDANTS TO PAY FOR A SECOND INDEPENDENT MEDICAL EXAMINATION FOR THE CLAIMANT WHERE THE DEFENDANTS HAD OBTAINED A SECOND IMPAIRMENT RATING
- Preservation of Error and Standard of Review
Claimant agrees that the Defendants have preserved error.
The standard of deference to be accorded to the agency’s decision should be pursuant to Iowa Code §17A.19(11)(a), which provides:
“The court shall not give any deference to the view of the agency with respect to whether particular matters have been vested by a provision of law in the discretion of the agency.”
The district court should review the Commissioner’s legal interpretation of Iowa Code §85.39 for errors at law. See Iowa Code §17A.19(10)(c). “In recent years, we have repeatedly declined to give deference to the Commissioner’s interpretation of various provisions of Chapter 85. Iowa Insurance Institute v. Core Group of Iowa Association for Justice, 867 N.W.2d 58, 65 (Iowa 2015). The language at issue is not technical or within the special expertise of the Commissioner. See Renda v. Civil Rights Commission, 784 N.W.2d 8, 13-14 (Iowa 2010).
- The Workers’ Compensation Commissioner and the District Court correctly ruled that the Defendants are required to pay for a second IME.
A critical fact that the Defendants attempt to gloss over is that the Claimant only sought a second IME pursuant to Iowa Code §85.39 after the Defendants’ nurse case manager wrote Dr. Brown on June 7, 2018 to request a second defense impairment rating to supplement the earlier 2016 defense impairment rating of Dr. John Smith. (See Petition for IME filed on August 23, 2018 and Attachment to Resistance filed September 7, 2018).
Iowa Code Section 85.39 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. Smith, and then obtained an impairment rating from Dr. Brown. 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. Brown.
The Defendants’ first argument that the Claimant is only entitled to one IME at the expense of the Defendants relies 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. Smith and later from Dr. Brown. (See Defense Answer filed on approximately February 7, 2017, Dr. Smith impairment rating of August 12, 2016 and Dr. Brown impairment rating of June 8, 2018).
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 does 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 is 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).
Claimant requests that the Appellate Court affirm the Decision by the Workers’ Compensation Commissioner and the District Court that Claimant is entitled to another independent medical examination at the expense of the Defendants.