Kern v. Fenchel
| Citation | 966 N.W.2d 326 (Table) |
| Decision Date | 01 September 2021 |
| Docket Number | No. 20-1206,20-1206 |
| Parties | Karla KERN, Plaintiff-Appellant, v. FENCHEL, DOSTER & BUCK, P.L.C. and Pharmacists Mutual Insurance Company, Defendants-Appellees. |
| Court | Iowa Court of Appeals |
Mark S. Soldat of Mark S. Soldat, PLC, West Des Moines, for appellant.
Thomas D. Wolle of Simmons Perrine Moyer Bergman PLC, Cedar Rapids, for appellees.
Considered by Mullins, P.J., May, J., and Doyle, S.J.*
Karla Kern appeals the district court order affirming the Workers’ Compensation Commissioner's (Commissioner) award of workers’ compensation benefits. She argues the Commissioner erred in failing to order reimbursement of an independent medical evaluation (IME), improperly converting impairment ratings to disability percentages, and failing to award penalties.
Kern first began to experience carpal tunnel syndrome
in both wrists when she was an employee at a law firm in 2003.1 She was treated and released from medical care in 2004. Following a brief period of employment with another firm, Kern began to work at Fenchel, Doster & Buck, P.L.C. (the firm) in 2004. In 2006, Kern sought treatment for pain in her left thumb.
In 2013, Kern began to experience more carpal tunnel
and thumb pain. She also experienced pain in her right shoulder. In May 2016, Kern sought treatment from her primary care provider and was diagnosed with bilateral carpal tunnel, left thumb trigger finger, and left carpometacarpal joint arthritis. Kern was referred to Dr. Rene Recinos and, in June 2016, was told she would need surgical intervention. Kern reported her injuries to the firm and said they were work related. In August, the firm sent Kern to Dr. Benjamin Paulson, an orthopaedic surgeon, who opined the injuries were not work related. The firm then denied any liability for the injuries, and Kern filed a claim with the Workers’ Compensation Division.
Kern returned to Dr. Recinos in 2017 and underwent the recommended surgery on March 21. She missed work from March 21 to April 20, 2017 but was paid for some of the time missed. Kern then returned to work full-time. She also independently underwent an IME in June 2017 with Dr. Sunil Bansal, an occupational medical specialist. Dr. Bansal opined the injuries were caused by Kern's work for the firm and calculated her permanent impairment as "eight percent of the whole person." Dr. Bansal prepared a report with his findings but was not asked to appear personally during the workers’ compensation proceedings.
A deputy commissioner with the Workers’ Compensation Division held a hearing in August 2017 and issued an arbitration decision the following December. The deputy weighed the opinions of both Dr. Paulson and Dr. Bansal and found Dr. Bansal's opinion "more thorough and convincing," but the deputy found it reasonable that the firm relied on the opinion of Dr. Paulson. The deputy also found the delays in the investigation and notification of the denial of benefits were "contemporaneously conveyed." The deputy accepted Dr. Bansal's method of calculating and ultimate calculation of Kern's impairment rating.
Relying upon [Dr. Bansal's] opinion, I found that [Kern] proved by a preponderance of the evidence that she sustained a material or substantial aggravation of underlying conditions as a result of her work activities for the [firm], resulting in the manifestation of a cumulative work injury on May 9, 2016. Therefore, I conclude that [Kern] has proved she sustained bilateral carpal tunnel syndrome
, left thumb carpometacarpal arthritis, and left trigger thumb, all arising out of and in the course of her employment with [the firm] on or about May 9, 2016.
In response to Kern's request for reimbursement of her IME fees, the deputy found Kern was unable "to establish the prerequisites of Iowa Code section 85.39 (2016) to qualify for an evaluation at [the firm's] expense." It also found no penalties were awardable for the alleged delays in acquiring treatment and investigating Kern's medical history and current claims.
Kern applied for rehearing with the deputy, who noted the application was "convoluted and unnecessarily complex." The deputy affirmed the decision in its entirety. Kern then appealed to the Commissioner, who affirmed the deputy's "well-reasoned analysis of all the issues raised." Kern again petitioned for rehearing, which was denied. Kern then applied for judicial review. The district court also affirmed. Kern appeals, arguing the agency erred in (1) failing to order reimbursement of IME fees or, in the alternative, to tax them against the firm as a cost; (2) using the wrong method to convert impairment ratings into a permanent disability percentage; and (3) failing to award penalties for undue delay of treatment and investigation.
Judicial review of final agency action, including the Workers’ Compensation Division, is governed by the Iowa Administrative Procedure Act. Iowa Code § 17A.1(2) (2019); Des Moines Area Reg'l Transit Auth. v. Young , 867 N.W.2d 839, 841–42 (Iowa 2015). Section 17A.19(10) describes the standards applicable during judicial review. Young , 867 N.W.2d at 842. The district court exercises appellate review and, on appeal, "we apply the standards of chapter 17A to determine whether the conclusions we reach are the same as those of the district court." Nance v. Iowa Dep't of Revenue , 908 N.W.2d 261, 267 (Iowa 2018) (quoting Iowa Ag Constr. Co. v. Iowa State Bd. of Tax Rev. , 723 N.W.2d 167, 172 (Iowa 2006) ). We reverse if we do not reach those same conclusions. Id.
When the Commissioner's factual determinations are "clearly vested by a provision of law in the discretion of the agency," appellate courts must examine the record as a whole to determine whether those determinations are supported by substantial evidence. Iowa Code § 17A.19(10)(f). Evidence is substantial if "the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance." Id. § 17A.19(10)(f)(1). "[A]pplication of the law to the facts is likewise vested by a provision of law in the discretion of the agency," and appellate courts "can only reverse the agency's application of the law to the facts if we determine the application was ‘irrational, illogical, or wholly unjustifiable.’ " Nance , 908 N.W.2d at 267 (quoting Iowa Ag Constr. Co. , 723 N.W.2d at 174 ). Issues of statutory interpretation are reviewed for correction of errors at law. Id. When the agency has "been vested by a provision of law" to exercise discretion, we review for abuse of that discretion. Iowa Code § 17A.19(10)(n), (11)(c).
Kern argues the costs of her IME should have been reimbursed. The parties disagree on the standard of review, which turns on the nature of the costs. An IME fee for the actual medical evaluation is recoverable only if a claimant complies with the procedure described in Iowa Code section 85.39 (2016). Costs of an IME report used at hearing, instead of calling the evaluating physician to give in camera testimony, are "taxed in the discretion of the commissioner." Iowa Code § 86.40 ; Young , 847 N.W.2d at 846–47. Kern attempted, and attempts on appeal, to recover the costs of the IME or, in the alternative, the report created by Dr. Bansal that was used in the hearing before the deputy.
Our supreme court engaged in an extensive comparison of sections 85.39(2) and 86.40 in Young . See 867 N.W.2d at 843–47.
Hearing costs are awarded in the discretion of the commissioner, while fees incurred by an employee for an independent examination and evaluation of disability permanency are separately reimbursed by the employer upon application to the commissioner. The concept of reimbursement under section 85.39, as opposed to taxation, is consistent with the overall approach under the workers’ compensation statute that makes the employer responsible for the medical care of an employee. Yet, costs necessary to conduct a hearing adopt an entirely different approach predicated on the discretion of the commissioner. Thus, a distinction exists under the statutory scheme between the taxation of costs incurred in a hearing and medical expenses incurred by an employee after the injury but prior to the hearing.
Id. at 846. Young explicitly states that employers are "not obligated to pay for an evaluation obtained by an employee outside the statutory process" described in section 85.39. Id. at 844.
Kern received no impairment rating from the evaluation by Dr. Paulson. Instead, Dr. Paulson opined the injuries were not caused by Kern's employment at all. Relying on the language of Young , the deputy found that no impairment rating was given at all because Dr. Paulson's evaluation went no further than causation. Thus, the IME with Dr. Bansal was not responsive to a disputed impairment rating and was outside the scope of section 85.39. See id. (). The deputy also denied the requested costs pursuant to section 86.40 because Dr. Bansal failed to provide a breakdown of the expenses showing the cost of preparing the report, even though Kern requested that information. Dr. Bansal provided a breakdown of the expense of (1) the exam and (2) reviewing Kern's medical records and drafting the report.
Kern argues the denial of the exam fees is based on a misinterpretation and misapplication of the law. The statutory analysis provided by our supreme court in Young is clear. Id. at 844–46. Although Young does not answer the precise question of whether a denial of causation is tantamount to a zero percent impairment rating,2 we find guidance in the following explanation:
If the injured worker wants to be reimbursed for the expenses...
To continue reading
Request your trial