Des Moines Area Regional Transit Authority and United Heartland v. Arbreina Young ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0231
Filed October 1, 2014
DES MOINES AREA REGIONAL TRANSIT
AUTHORITY and UNITED HEARTLAND,
Petitioners-Appellants,
vs.
ARBREINA YOUNG,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,
Judge.
The Des Moines Area Transit Authority and United Heartland appeal from
a ruling on judicial review of a decision made by the workers’ compensation
commissioner. REVERSED.
David L. Jenkins of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des
Moines, for appellant.
Robert E. Tucker, Des Moines, for appellee.
Considered by Tabor, P.J., Mullins, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.
The Des Moines Area Transit Authority and United Heartland (collectively
referred to as DART) appeal from a ruling on judicial review of a decision made
by the workers’ compensation commissioner.
I. Facts and Background
On June 9, 2009, the respondent-appellee, Arbreina Young, was working
for DART as a bus driver when she suffered injuries as a result of a collision with
another vehicle. DART authorized Dr. Donna Bahls to provide medical treatment
beginning August 20, 2009. On May 18, 2010, Dr. Bahls determined Young had
received maximum medical improvement and provided an opinion regarding her
permanent functional impairment. Prior to that, and specifically on March 18,
2010, Young requested and received an independent medical examination (IME)
from Dr. Jacqueline Stoken. Dr. Stoken opined Young had obtained maximum
medical improvement on March 11, 2010, and expressed an opinion as to
Young’s functional impairment as a result of her work injury.
The only issue on appeal is the workers’ compensation commissioner’s
award of $2800 as the cost of the IME provided by Dr. Stoken prior to any
evaluation by the physician retained by her employer. The district court affirmed
the commissioner’s award for the full cost of the IME provided by Dr. Stoken.
II. Scope of Review
The scope of review of an administrative agency is controlled by Iowa
Code section 17A.19 (2009). The commissioner’s legal findings are reversed for
errors of law. Iowa Code § 17A.19(10)(b), (c). In acting on a review of an
agency’s action the court functions solely in an appellate capacity to correct
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errors of law. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). The
findings of fact made by the commissioner are binding so long as they are
supported by substantial evidence. Excel Corp. v. Smithart, 654 N.W2d 891, 896
(Iowa 2002).
III. Discussion
There was no dispute of fact. The charge made by Dr. Stoken, and
included as a cost in the hearing by the commissioner, was for an independent
medical examination made prior to DART’s physician having made any rating on
Young’s functional impairment.
DART contends it has no obligation to pay for the IME provided by Dr.
Stoken because it was obtained prior to any rating by the physician they had
selected.
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 . . . .
Iowa Code § 85.39.
The commissioner awarded Dr. Stoken’s fees, exercising its right of
discretion in awarding the costs in a hearing. “All costs incurred in the hearing
before the commissioner shall be taxed in the discretion of the commissioner.”
Id. § 86.40.
The commissioner has adopted a rule to implement section 86.40 which
sets out the costs which would logically be associated with a hearing and
explains the reasonable costs of obtaining not more than two doctors’ or
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practitioners’ reports. Iowa Admin. Code r. 876-4.33. In keeping with Iowa Code
section 86.40, the rule sets out costs usually associated with a hearing and does
not specifically include an IME. Young, in effect, asserts there cannot be a
medical report without an examination and although Dr. Stoken’s invoice was
only for an IME, it included a report. Young asserts the report is a part of the
cost of the proceedings and it necessarily includes the examination on which it is
based. She asserts the two are indivisible. However, it is the timing of the IME
that creates the conflict with Iowa Code section 85.39.
Young and the commissioner further assert that even though Iowa Code
section 85.39 sets out one scenario providing for the refund of the cost incurred
in obtaining an IME, it does not preclude other methods of charging an IME to the
employer. That may be true as to IMEs after the employer’s retained doctor has
made a rating. The IME for which recovery is being sought was obtained before
DART’s physician had made any impairment rating, contrary to the provisions of
Iowa Code section 85.39.
Young primarily relies on John Deere Dubuque Works v. Caven, 804
N.W.2d 297, 301 (Iowa Ct. App. 2011), which held that the commissioner could
award fees incurred for the costs of an expert report in excess of $150.
Previously the commission had considered $150 to be the maximum allowed for
an expert’s report used at a hearing. Caven, 804 N.W.2d at 299. The Caven
court emphasized that the award was made under Iowa Code section 86.40 and
not under Iowa Code section 85.39, as John Deere had requested. Id. at 300-01.
In fact, the disputed charge was not the result of an IME, but was for the report
made by Richard Tyler, an audiologist, based on a review of medical records and
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an interview of the claimant after the employer’s physician had denied any
functional impairment.1 Id. at 298.
The contention that IMEs have previously been awarded as a cost of the
proceeding is unconvincing. At issue in this case is the timing of the IME. Prior
to the Caven ruling and the change in the worker’s compensation commissioner’s
rules, the $150 limitation for medical reports for all practical purposes limited the
award to the cost of the report or more likely only a portion of the cost of the
report, let alone an IME.
It is necessary to look at the language of the workers’ compensation act
that the legislature has chosen to determine its intent. United Fire & Cas. Co. v.
St. Paul Fire & Marine Ins. Co., 677 N.W.2d 755, 759 (Iowa 2004). Iowa Code
section 85.39 and its purpose is abundantly clear, “A medical evaluation pursuant
to section 85.39 is a means by which an injured employee can rebut the
employer’s evaluation of disability. It is not a way for the employee to initiate
proceedings.” Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 394 (Iowa 2009).
Iowa Code section 85.39 does not expose the employer to liability for
reimbursement of the cost of a medical evaluation unless the employer has
obtained a rating in the same proceeding with which the claimant disagrees. Id.The Kohlhaas decision is dispositive. The Kohlhaas case was concerned
with a re-opening in which the claimant was using a rating in the initial case as a
basis for a new IME at the employer’s expense. Id. at 390. In the instant case,
Dr. Stoken’s premature IME was relative to an initial claim where no previous
1
See Caven v. John Deere Dubuque Works, File Nos. 5023051, 5023052, 2008 WL
4368536, at *8 (Iowa Workers’ Comp. Comm’n Sept. 12, 2008).
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rating by an employer’s physician existed. Furthermore, Iowa Code section
85.39 makes no distinction between re-openings and initial openings. The
employer’s physician’s report of functional disability must be made before an
employer is obligated to pay for the IME obtained by the employee. To allow a
claimant the cost of an IME conducted prior to the employer’s physician’s report
under Iowa Administrative Code rule 876-4.33 would be to allow an agency rule
to defeat the requirements of a statute enacted by the legislature.
Dr. Stoken’s invoice includes only the charge for the IME and makes no
charge for the report she provided. There is nothing in the record to indicate she
made any charge other than for the IME.
The decision of the trial court and the decisions of the workers’
compensation commissioner in assessing DART charges made for the
independent medical examination obtained prior to the employer’s physician’s
rating of Young’s permanent disability as a part of the cost of the hearing are
reversed.
REVERSED.