IWCC Issues Declaratory Ruling on Section 85.39

In February of 2009, Snap-On Tools filed a petition for declaratory order with the Iowa Workers' Compensation Commissioner.  Initially, the commissioner did not answer the petition, and a petition for judicial review was filed in district court.  The parties agreed that the commissioner would issue a ruling, and on June 14, 2010, the commissioner did so.

All of the questions posed in the declaratory ruling related to section 85.39 of the Code.  Those questions were as follows:

• Must the employer use specific language in an 85.39 request?
• Can the employee veto or control the identity of the 85.39 physician?
• What amount of time before the examination is fair notice?
• Must mileage and meal expenses be paid in advance?
• What is a reasonable expense for meals?
• Under what circumstances must lodging be paid for in association with an 85.39 exam?
• Must the employee actually incur a lodging expense to be entitled to payment?
• Does 85.39 authorize an employer to request a medical exam as part of its initial investigation?
• Can the commissioner compel the claimant to attend an exam where the claim is not litigated?
• If benefits are suspended for failing to attend an exam, can benefits be reinstated by simply agreeing to attend an exam after the hearing?

The commissioner answered the questions in the following manner:

• There is no requirement for specific language in 85.39, but a "plain reading of section 85.39 requires the employer to provide enough information to adequately inform the employee of the proposed examination including a summary of the type or scope of examination, the date time and location of the examination and the name of the licensed physician who is to perform the examination."
• The employee has no right to veto or control the identity of the IME physician as long as the physician is licensed to practice medicine in Iowa or some other state.
• "Absent exigent circumstances, 30 days advance notice would typically be enough notice [of an IME exam], but a longer time period may be required under some circumstances."
• The questions regarding payment for transportation and meals are answered together.  The commissioner indicates that advance payment is required only if ordered by a deputy or the commissioner.  If the agency does not order advance payment, the injured worker must submit proof of expense before reimbursement.  Meal or lodging expenses must be "reasonably incident to the examination," but when this test is met, the employer must pay the full cost of the expenses, so that the exam is "without cost to the employee."
• The commissioner or deputy does not have the authority to compel attendance at an exam in a non-litigated case.  The only enforcement action is suspension of benefits.
• A suspension of benefits "lasts only during the period of refusal.  If the employee later relents and agrees to submit to examination after hearing, the employee's entitlement to benefits can be reinstated in a timely review-reopening proceeding or should be reinstated voluntarily by the employer."

The actions of the commissioner appear to be a common sense application of section 85.39, in light of the actual words of the statute.  On the one hand, the commissioner clearly notes that the employer has the right to control the identity of the doctor performing the 85.39 exam at the behest of the employer.  On the other hand, if the employer takes this option, the employee should be given adequate notice (30 days or more), and should have all expenses reimbursed, including meal and lodging expenses.  The commissioner clarifies that the remedy of suspension lasts only during the period in which a claimant refuses to attend an examination, and that if the claimant decides to attend the examination, benefits must be reinstated.  The commissioner notes that although this can be the subject of a review-reopening petition, benefits "should be reinstated voluntarily by the employer," which would seem to give rise to a penalty claim if the benefits are not reinstated once the claimant indicates he or she is willing to attend the exam.

For those contested cases in which there is a good deal of gamesmanship going on, the ruling clarifies the responsibilities of each of the parties, and should prevent last-minute use of the 85.39 exam as a way to beat down the claimant.  It also clarifies that the claimant has little or no say in determining who will be conducting the examination.  The 30 day advance notice requirement; the finding that all expenses reasonably incident to the exam be paid; and the clarification that reinstatement should occur once a claimant has agreed to attend the exam are all clarifications that work in claimants' favor.  The findings are rooted in the language of 85.39, and in the general approach that the parties act "reasonably" throughout the contested case process.