Court of Appeals Concludes that 85.39 Examinations are Appropriate Even in Denied Claims
In City of Davenport v. Newcomb , No. 11-1035 (Iowa App. April 11, 2012), the court addressed an issue that has been the subject of a great deal of controversy - the ability of the defendants to obtain an examination under section 85.39 of the Iowa Code when a claim has been denied. The court decided, contrary to the previous views of the commissioner, that defendants had the right to such an examination in denied cases. In Newcomb , the court also addressed issues of whether the deputy erred in permitting the testimony of certain witnesses but not other, and whether penalty benefits were appropriate. The question concerning testimony arose because one deputy heard the evidence before making a decision on the case. The deputy assigned to decide the claim (Walshire) decided that he needed to hear from the claimant and his wife because their testimony was so different than the treating physician concerning the back problems alleged by claimant, and their credibility ha...