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Ostwinkle v. Mathy Construction Co.

Court of Appeals of Iowa

September 25, 2019

ROBERT OSTWINKLE, Claimant-Appellee,
v.
MATHY CONSTRUCTION COMPANY, d/b/a RIVER CITY PAVING and/or A.L.M HOLDING COMPANY, and ZURICH AMERICAN INSURANCE COMPANY, Defendants-Appellants.

          Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.

         Mathy Construction Company and Zurich American Insurance Company appeal an order to reimburse the cost of an independent medical examination in a workers' compensation case. AFFIRMED.

          Thomas D. Wolle of Simmons Perrine Moyer Bergman PLC, Cedar Rapids, for appellants.

          Dirk J. Hamel of Gilloon, Wright & Hamel, P.C., Dubuque, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.

          BOWER, Judge.

         Mathy Construction Company and Zurich American Insurance Company (collectively "Employer") appeal an order to reimburse the cost of an independent medical examination (IME) in a workers' compensation case.[1] We find the cost of the IME is reimbursable under Iowa Code section 85.39 (2017).

         I. Background Facts & Proceedings

         On July 23, 2013, Robert Ostwinkle sustained a low-back injury during the course of his employment with Mathy Construction. He filed an arbitration petition seeking workers' compensation benefits on July 28, 2015.[2] In October 2015, the Employer's physician opined Ostwinkle had reached maximum medical improvement. In November 2016 the Workers' Compensation Commissioner (Commissioner) entered an order for healing period and temporary partial disability benefits. The parties stipulated the issue of permanent disability was not yet ripe, though the Employer's physician had determined Ostwinkle had reached maximum medical improvement and provided an impairment rating.

         On February 3, 2017, Ostwinkle filed a review-reopening petition seeking additional healing period and temporary disability benefits relating to the back injury. After obtaining authorization from the Commissioner, Ostwinkle obtained an IME in July. The Employer reimbursed Ostwinkle for the approved IME report pursuant to Iowa Code section 85.39.[3] In August, Ostwinkle dismissed his review-reopening petition without prejudice.

         Ostwinkle underwent additional treatment. On June 8, 2018, after a request from the Employer, the rehabilitative doctor opined Ostwinkle had reached maximum medical improvement from his July 2013 injury, recommended work restrictions, and provided a permanent impairment rating.

         On June 11, Ostwinkle re-filed his review-reopening petition, this time requesting healing period, temporary partial disability, industrial disability, permanent total disability, and odd-lot disability benefits. On August 23, he sought another IME at Employer's expense. The Employer resisted, based on having reimbursed Ostwinkle's prior IME report for the same injury. The Commissioner granted Ostwinkle's application for a new IME. The Employer filed an application for rehearing, which was denied, then petitioned the district court for judicial review. On February 5, 2019, the district court affirmed the Commissioner's ruling. The Employer appeals.

         II. Standard of Review

         "The standards set forth in Iowa Code chapter 17A govern judicial review of final decisions by the workers' compensation commissioner." Ramirez-Trujillo v. Quality Egg, L.L.C., 878 N.W.2d 759, 768 (Iowa 2016). "We will apply the standards of section 17A.19(10) to determine whether we reach the same results as the district court." Evercom Sys., Inc. v. Iowa Utils. Bd., 805 N.W.2d 758, 762 (Iowa 2011). Here, our review of the workers' compensation commissioner's decision is for correction ...


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