Court of Appeals Affirms Award of Permanency Benefits In Face of Claimant's Failure to Attend 85.39 Exam
In Wal-Mart Stores v. Johnson, No. 10-0358 (Iowa App. Jan. 20, 2011), the Court of Appeals affirmed the award of permanency benefits awarded by the commissioner. Claimant's treating physician, Dr. Hlavin, had concluded that claimant's neck, shoulder and arm problems were due to her work activities. The employer denied benefits, and sought to have claimant attend a defense medical examination with Dr. Boulden. Claimant refused to attend, arguing that there was no right to an 85.39 examination in a denied claim. The employer filed a motion to compel attendance, and in the meantime, Dr. Boulden denied causation in a records review evaluation.
The deputy denied defendants' request for an 85.39 exam, and a motion to reconsider on the same subject was denied. At hearing, the deputy made an oral ruling that the employer was not entitled to the 85.39 exam. The deputy found a 40% industrial loss. In the written decision, the 85.39 issue was not addressed. The employer appealed, and the commissioner affirmed.
The primary issue before the court was whether the employer had preserved error. The district court had ruled that the employer did not preserve error because it did not raise the issue before the commissioner. The employer's brief, however, had raised this issue. According to the Court of Appeals, the problem was not that the issue was not raised before the commissioner, but that the commissioner had failed to rule on the issue. Having failed to rule on the issue, it was incumbent upon the defendant to file a request for rehearing so that the issue could be addressed. Because the employer did not due so, the employer had failed to preserve error.
On the merits of the case, the court concluded that the 40% award was supported by substantial evidence. The commissioner had reviewed the evidence, and chose to believe Dr. Hlavin's conclusions. Under normal principles of substantial evidence, the decision of the commissioner was affirmed. A subsidiary issue involving the date of injury was also presented and affirmed on substantial evidence grounds.
The deputy denied defendants' request for an 85.39 exam, and a motion to reconsider on the same subject was denied. At hearing, the deputy made an oral ruling that the employer was not entitled to the 85.39 exam. The deputy found a 40% industrial loss. In the written decision, the 85.39 issue was not addressed. The employer appealed, and the commissioner affirmed.
The primary issue before the court was whether the employer had preserved error. The district court had ruled that the employer did not preserve error because it did not raise the issue before the commissioner. The employer's brief, however, had raised this issue. According to the Court of Appeals, the problem was not that the issue was not raised before the commissioner, but that the commissioner had failed to rule on the issue. Having failed to rule on the issue, it was incumbent upon the defendant to file a request for rehearing so that the issue could be addressed. Because the employer did not due so, the employer had failed to preserve error.
On the merits of the case, the court concluded that the 40% award was supported by substantial evidence. The commissioner had reviewed the evidence, and chose to believe Dr. Hlavin's conclusions. Under normal principles of substantial evidence, the decision of the commissioner was affirmed. A subsidiary issue involving the date of injury was also presented and affirmed on substantial evidence grounds.
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