Don’t forget about your 85.39 rights!

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On 9/1/21, the Iowa Court of Appeals held that under Iowa Code section 85.39, when the company doctor gives an opinion that an injury is not work-related, that is the same thing as the doctor saying that the worker has 0% impairment from a work injury.

Under section 85.39, if an employee believes that the company’s doctor’s rating is “too low,” which of course “no causation” or “zero” is as low as you can get, then an employee has the right to see a doctor of the employee’s own choosing for which the employer and insurance carrier have to pay. This used to be how the law was applied, but language from an Iowa Supreme Court opinion in 2015, called Dart v. Young, was being construed to say that a finding of “no causation” is not the same as “zero impairment” and therefore, Claimants were having to pay for their own doctor’s report out of pocket. This may seem like no big deal, but a proper report by a doctor well-qualified to opine not only on the medical issues, but also the legal issues, is several thousand dollars. It is very different from your trip to your family doctor for some cold medicine. The result of years-worth of misapplication of the Dart v. Young holding was that many folks with “small” but legitimate injuries, went with their claims denied and due to the cost of the report, had no real ability prove their case because the recovery, even if the worker won, would still sometimes be less than the cost of the doctor’s report. The Kern case changes that!

The moral of the story is that if you have a claim which has been denied, big or small, you have the right to have an exam by a doctor of your choice that the company has to pay for. Do NOT make the mistake of letting the company pick this second doctor for you as we have seen happen to folks who come to us too late. Odds are very good that the company will pick someone bad for you and put you in a worse position. A lawyer who practices workers’ compensation can help you find the best doctor for your particular injury. Usually this is an occupational medicine doctor, an orthopedist, or a neurosurgeon, but sometimes involves other specialties as well, depending upon the nature of the injury. In almost all cases, the lawyer will pay for the doctor’s report initially, so you don’t have to worry about the thousands of dollars of cost, and then the lawyer will be reimbursed by the carrier under section 85.39. So, don’t forget about your 85.39 rights! If you have questions about your case, call and schedule a free appointment with Jennifer to talk about how she can, and cannot, help!

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Jennifer Zupp

Partner, Attorney

Jennifer Zupp is an attorney in Denison, Iowa where she owns Zupp and Zupp Law Firm, P.C. with her twin sister, Jessica. She specializes in Workers' Compensation, Unemployment, and Personal Injury.

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