Court of Appeals Affirms Award of IME in Review Reopening Case

In Ostwinkle v. Mathay Construction Co., No. 19-0341 (Iowa App. Sept. 25, 2019), the Court of Appeals affirmed the award of a second IME in a review reopening case under section 85.39 of the Code. 

After filing his review reopening case, claimant sought and was granted an IME by the commissioner, which was duly paid by defendants.  Claimant subsequently dismissed the review reopening petition, and later refiled following the issuance of a second impairment rating by defendants' physician.  Claimant sought another IME, which was granted by the deputy.  Defendants appealed and  the commissioner and district court affirmed.

On appeal to the Court of Appeals, the decision of the agency was affirmed. Defendants argued that 85.39 permits payment for only a single IME.  Claimant argued that the statute allows a second IME if there is a second impairment rating by defendants' physician, which had occurred in this case.  The court concluded that Kohlhaas was the most applicable precedent and noted that a review reopening decision was a new proceeding, which gave rise to a second IME award if there had been a second rating from employer's physician.  Note that both IME's in this case had been in review reopening proceedings.  The court does not specifically indicate that if there is a second rating by defendants' doctor claimant has a right to a new IME in all cases, but seems to tie this to a new proceeding,  despite the fact that  it is arguable that the statutory language does not appear to limit the number of IMEs.  The court's decision is therefore very limited in scope.