                IN THE SUPREME COURT OF IOWA
                              No. 14–0231

                         Filed June 5, 2015
                      Amended October 28, 2015


DES MOINES AREA REGIONAL TRANSIT AUTHORITY
and UNITED HEARTLAND,

      Appellants,

vs.

ARBREINA YOUNG,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Eliza J.

Ovrom, Judge.



      An injured worker awarded workers’ compensation benefits

following a hearing seeks further review of a decision by the court of

appeals denying the assessment of expenses of a medical examination as

costs of the hearing taxed to the employer. DECISION OF COURT OF

APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND

CASE REMANDED.



      David L. Jenkins of Bradshaw, Fowler, Proctor & Fairgrave, P.C.,

Des Moines, for appellant.



      Robert E. Tucker of Tucker Law Office, Des Moines, for appellee.
                                      2

CADY, Chief Justice.

      In this workers’ compensation appeal, we must decide whether

Iowa Code section 85.39 (2009) provides the exclusive method for

reimbursement of an independent medical examination obtained by a

claimant or if the workers’ compensation commissioner may tax the

expense of the examination as costs incurred in the hearing under an

administrative rule authorizing the taxation of costs of obtaining reports

by   doctors.    In   this   case,   the    deputy   workers’   compensation

commissioner taxed as costs to the employer a medical examination

obtained by the worker outside of the provisions of section 85.39. The

workers’ compensation commissioner and the district court affirmed the

taxation of the cost. On appeal, the court of appeals reversed, holding

the reimbursement would be inconsistent with Iowa Code section 85.39.

On our review, we affirm the decision of the court of appeals and remand

the case to the district court to further remand to the commissioner for

further proceedings consistent with this opinion.

      I. Factual Background & Proceedings.

      The Des Moines Area Regional Transit Authority (DART) employed

Arbreina Young as a bus driver.       On June 2, 2009, the bus she was

driving collided with an empty vehicle on DART premises. She sought

medical treatment for a back injury and returned to work on June 8,

2009. She was reassigned to perform light work.

      Young received physical therapy for her injury and was sent by

DART to an orthopedic surgeon, Dr. Daniel McGuire.              He determined

surgery would not aid in Young’s healing. Dr. McGuire referred Young to

Dr. Donna Bahls for pain management.           Dr. Bahls treated Young from

August 2009 to November 2011.             Young regularly attended physical

therapy from June 2009 through March 2010.
                                    3

      On March 18, 2010, Young went to Dr. Jacqueline Stoken for a

medical examination. The examination was not authorized by DART, but

arranged independently by Young.          Dr. Stoken examined Young,

reviewed her medical records, and drafted a report.           In the report,

Dr. Stoken concluded Young reached maximum medical improvement

(MMI) on March 11, 2010, and suffered a permanent disability to her

back. She assigned Young a fifteen percent body-as-a-whole impairment

rating. Dr. Stoken also imposed work restrictions.

      On April 16, Young underwent a functional capacity evaluation.

The evaluation found she should be limited to light to medium categories

of work.    On May 18, Dr. Bahls determined Young had reached MMI,

suffering a permanent disability to her back, and assigned her a five

percent body-as-a-whole impairment rating.        She also adopted the

restrictions recommended by the functional capacity evaluation.

      Young filed a workers’ compensation claim on December 29, 2010,

and the case proceeded to a hearing before a deputy workers’

compensation commissioner. At the hearing, Young submitted the report

from Dr. Stoken as evidence.        Following the hearing, the deputy

commissioner found Young suffered a permanent partial disability to her

back resulting in a twenty-five percent reduction in earning capacity.

The deputy commissioner also taxed as a cost against DART the expense

of Dr. Stoken’s examination and report under the administrative rule

governing the assessment of costs in a hearing.          The fee for the

examination and report was $2800.

      The    commissioner   affirmed    the   decision   of    the   deputy

commissioner. DART filed for judicial review. The district court affirmed

the decision of the commissioner.       The district court held that the

reimbursement was proper under Iowa Code section 86.40 and Iowa
                                     4

Administrative Code rule 876—4.33, as the “statute and corresponding

rule give the Workers Compensation Commissioner discretion to award

costs related to hearings before the agency.”

      DART appealed, and we transferred the case to the court of

appeals.   The sole issue raised concerned the award as a cost of the

examination and report by Dr. Stoken. The court of appeals reversed the

district court’s ruling. It found the practice of assigning the expense of

an examination as a cost under the rule would defeat the statutory

requirements governing the reimbursement of an independent medical

examination. Further, the court of appeals determined that Dr. Stoken’s

bill was a charge for the examination, not a report, as required by the

language of Iowa Administrative Code rule 876—4.33. Young sought and

we granted further review.

      II. Scope of Review.

      Our review of this workers’ compensation appeal is governed by the

Iowa Administrative Procedure Act, Iowa Code chapter 17A.           Mycogen

Seeds v. Sands, 686 N.W.2d 457, 463 (Iowa 2004). Iowa Code section

17A.19(1) entitles parties who are “aggrieved or adversely affected by any

final agency action” to judicial review. Iowa Code § 17A.19(1). “We apply

the standards of section 17A.19(10) to the Commissioner’s decision and

decide whether the district court correctly applied the law in exercising

its [section 17A.19(1)] judicial review function.” Lakeside Casino v. Blue,

743 N.W.2d 169, 172–73 (Iowa 2007). If we reach the same conclusions

as the district court, “ ‘we affirm; otherwise, we reverse.’ ” Neal v. Annett

Holdings, Inc., 814 N.W.2d 512, 518 (Iowa 2012) (quoting Mycogen Seeds,

686 N.W.2d at 464).

      “[W]e give an agency substantial deference when it interprets its

own regulations,” so long as such interpretation is not in violation of the
                                      5

rule’s plain language and clear meaning.         Boehme v. Fareway Stores,

Inc., 762 N.W.2d 142, 146 (Iowa 2009) (“ ‘When the language of a statute

is plain and its meaning clear, the rules of statutory construction do not

permit us to search for meaning beyond the statute’s express terms.’ ”

(quoting Rock v. Warhank, 757 N.W.2d 670, 673 (Iowa 2008))).               When

discretion has been vested in the commissioner, “we reverse only if the

commissioner’s    application   was       ‘irrational,   illogical,   or   wholly

unjustifiable.’ ” Larson Mfg. Co. v. Thorson, 763 N.W.2d 842, 850 (Iowa

2009) (quoting Iowa Code § 17A.19(10)(l)).           On the other hand, if

discretion has not been clearly vested, “then the court must disregard

any interpretation by the agency that it finds erroneous.” Evercom Sys.,

Inc. v. Iowa Utils. Bd., 805 N.W.2d 758, 762 (Iowa 2011). We “are not

bound by the agency’s interpretation [of law] and may substitute our own

to correct a misapplication of law.” SZ Enters., LLC v. Iowa Utils. Bd.,

850 N.W.2d 441, 449 (Iowa 2014); accord Iowa Code § 17A.19(10)(c).

      When interpreting statutes, we look to the intent of the legislature

based on the words used and what interpretation will best effect the

purpose of the statute. IBP, Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa

2001).   It is well established that “[w]e liberally construe workers’

compensation statutes in favor of the worker,” Ewing v. Allied Constr.

Servs., 592 N.W.2d 689, 691 (Iowa 1999), because “[t]he primary purpose

of the workers’ compensation statute is to benefit the worker and his or

her dependents, insofar as statutory requirements permit,” McSpadden v.

Big Ben Coal Co., 288 N.W.2d 181, 188 (Iowa 1980).

      III. The Positions of the Parties.

      DART argues that Iowa Code section 85.39 occupies the entire field

for the reimbursement of what has become known as an independent

medical examination (IME), and therefore, the commissioner cannot
                                        6

provide for the reimbursement of an IME outside the framework of

section 85.39. Young argues the process works to the disadvantage of

the employee. She claims it is unfair and impractical to wait to obtain an

IME until after the employer has had the employee examined by a

physician of the employer’s choice. For example, Young asserts that an

employee, who must wait under section 85.39 to obtain a reimbursable

examination with the employee’s choice of physician until after the

employer’s choice of physician has performed an examination, may be

unable to file a timely claim because the employer could refuse to

establish an impairment rating and, in effect, prevent the employee from

filing a claim. As to the question of precisely what costs may be taxed,

Young argues the physical examination is part of the cost of obtaining

the doctor’s report and so can be taxed at the commissioner’s discretion

as hearing costs.

      The deputy commissioner found that Dr. Stoken’s IME report did

not qualify for reimbursement under Iowa Code section 85.39 because it

was premature.      However, the deputy noted that an IME is “routinely

awarded as costs” under the rule because section 85.39 limits

reimbursement       to   a   single   examination.   Further,   the   deputy

commissioner found the rule was not limited to an assessment of the

costs of the report but could include the underlying examination. The

commissioner affirmed, finding the fee was properly assessed under the

rule and that the cost of the report included the time spent examining

the claimant and reviewing the records.

      The district court held that section 85.39 did not control the

awarding as a cost of Dr. Stoken’s IME because it was at a time not

contemplated in the statute. However, the court combined the discretion

vested in the commissioner to award costs under section 86.40 with our
                                     7

general principle of construing workers’ compensation statutes liberally

in favor of the worker to give deference to the commissioner’s

interpretation that he had the authority to tax as a hearing cost an IME

not covered by section 85.39.

      IV. Analysis.

      When an injury is sustained by a worker covered by our system of

workers’ compensation, a statutory process exists that not only directs

the treatment and care for the worker, but also the future examination

for any disability resulting from the injury following the healing period.

See Iowa Code §§ 85.27, .39. However, the two processes are separate

and operate with different objectives.

      The   statutory   process   first   tasks   the   employer   with   the

responsibility to provide medical and related health care to the injured

worker. See id. § 85.27(1). This obligation is focused on the treatment

and rehabilitation following the injury and generally authorizes the

employer to select the care providers. Id. § 85.27(4). If the employee is

dissatisfied with the care provided, a process exists for the selection of

alternative care. See id. Additionally, an injured worker can always seek

an alternative care provider at the worker’s own expense.

      A separate component of the process, however, is devoted to the

examination of an injured worker for the purpose of ascertaining “the

extent and character of the injury” for purposes of paying benefits in the

event of a disability resulting from the injury. Daugherty v. Scandia Coal

Co., 206 Iowa 120, 124, 219 N.W. 65, 67 (1928); see also Iowa Code

§ 85.39. These benefits are paid to the employee by the employer. Iowa

Code §§ 85.33–.34.

      Under the evaluation process, an injured worker is required to

submit to an examination by a physician selected by the employer at the
                                    8

employer’s expense as often as reasonably required. Id. § 85.39. At the

same time, the employee is entitled to have a physician of the employee’s

choice, at the employee’s own expense, present to participate in the

examination. Id.

      If the evaluation by the physician retained by the employer

includes a permanent disability rating and “the employee believes this

evaluation to be too low,” the employee may obtain a subsequent

examination by a physician of the employee’s choice and be reimbursed

by the employer for the reasonable fee of the examination, plus

transportation expenses. Id. The employee is required to apply to the

commissioner to receive this reimbursement and must provide notice to

the employer and the employer’s insurance carrier. Id. The process is

known as an IME because the examination is independent of the

examination done by the physician selected by the employer.        It can

apply, subject to approval by the commissioner, each time an employer

requires the employee to submit to an evaluation of permanent disability

by a new physician selected by the employer.

      Although the statute sets forth a process to follow in evaluating

injured workers following maximum medical improvement, the statute

does not preclude an employee from seeking evaluations outside the

statutory process at the employee’s own expense.        Additionally, the

process does not preclude a treating physician from offering a disability

rating.   The statutory process balances the competing interests of the

employer and employee and permits the employee to obtain an

independent medical examination at the employer’s expense.        See id.;

IBP, Inc., 633 N.W.2d at 327 (“[I]t is apparent that the legislature

intended to balance the competing interests of the employee and

employer with respect to the choice of doctor.”). An employer, however, is
                                      9

not obligated to pay for an evaluation obtained by an employee outside

the statutory process.       See IBP, Inc., 633 N.W.2d at 327 (limiting

reimbursable disability evaluations to when the “physician chosen by the

employer gives [an unsatisfactory] disability evaluation”).

      An injured worker needs to be evaluated by a physician under the

workers’ compensation law to determine an award of compensation for

permanent disabilities.      See Iowa Code § 85.34.   The assessment is a

critical component to an award of benefits for permanent disabilities.

See id. § 85.34(2)(u)–(v).    If the employer and employee are unable to

agree on the medical assessment of the disability or unable to reach a

settlement, a claim for benefits by the employee is decided by the

workers’ compensation commissioner following a hearing at which the

medical evidence of a disability is presented. Iowa Code §§ 86.14, .17;

Iowa Admin. Code r. 876—4.18 (“Any relevant medical record or report

served upon a party . . . shall be admissible as evidence at hearing of the

contested case . . . .”). This evidence is commonly presented in the form

of a written report.   See Iowa Admin. Code r. 876—4.18.        Under Iowa

Code section 86.40, “[a]ll costs incurred in the hearing . . . shall be taxed

in the discretion of the commissioner.” Under rules promulgated by the

commissioner, the assessment of costs under section 86.40 include “the

reasonable costs of obtaining no more than two doctors’ or practitioners’

reports.” Iowa Admin. Code r. 876—4.33.

      The issue presented in this case pits the assessment-of-costs rule

against the statute governing evaluations for purposes of disability

ratings. The question to be resolved is whether the commissioner can

tax the fees of a physician arising from the evaluation of an employee

done outside the process set forth in Iowa Code section 85.39 as “costs

incurred in the hearing” when the employee submits a written report of
                                      10

the evaluation at the hearing. See Iowa Code § 86.40. We must decide if

the assessment-of-costs rule is limited to the cost of the doctor’s report

or whether the rule also includes the fees of the underlying medical

examination that was the subject of the report.

      We    recognize    the   resolution    of   this   dispute    involves   an

administrative rule, but it more fundamentally concerns two statutes. A

rule promulgated by the workers’ compensation commissioner cannot

exceed the statutory authority to promulgate the rule.             See Wallace v.

Iowa State Bd. of Educ., 770 N.W.2d 344, 348 (Iowa 2009) (“When rules

adopted by an administrative agency exceed the agency’s statutory

authority, the rules are void and invalid.”). Our legislature only granted

the commissioner discretion to tax “[a]ll costs incurred in the hearing

before the commissioner.” Iowa Code § 86.40 (emphasis added). It did

not grant the commissioner authority to restructure the statutory

process    governing    evaluations   of    permanent    disabilities   and    the

employer’s statutory obligation to reimburse the employee for an

independent evaluation. See id. § 85.39. In this respect, we emphasize

that we do not defer to the commissioner’s interpretation of a statute if

the interpretation is beyond the scope of the powers delegated by the

governing statute.      See Iowa Code § 17A.19(10)(b)–(c); Wallace, 770

N.W.2d at 348; see also Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 256–

57 (Iowa 2012) (examining when the commissioner has the authority to

interpret a statute).    Thus, the fundamental question is whether the

legislature intended section 86.40           to provide a means to seek

reimbursement for disability evaluations independent of section 85.39.

      The undisputed facts of this case highlight the statutory conflict

presented by the commissioner’s interpretation of administrative rule

876—4.33.     Under the commissioner’s interpretation, a worker can
                                    11

obtain   an   evaluation   independent   of   the   statutory   process and

nevertheless be awarded reimbursement for the evaluation fee under the

statutory and regulatory procedure governing “costs incurred in the

hearing.” Iowa Code § 86.40.

      When two statutes are applied in a conflicting manner, we “must

attempt to harmonize them in an effort to carry out the meaning and

purpose of both statutes.”    Kelly v. State, 525 N.W.2d 409, 411 (Iowa

1994). Our legislature would not have written one statute to supersede

another. Nevertheless, it is possible to read sections 85.39 and 86.40 so

they do not conflict with each other.           Section 85.39 addresses

reimbursement for a physician’s examination fee and is silent on the cost

of a subsequent report of that examination needed for a hearing.

Instead, section 86.40 addresses the costs “incurred in the hearing.” If

this language in section 86.40 includes the fees of an evaluation incurred

prior to the report, then section 86.40 would largely render the

reimbursement provision in section 85.39 superfluous.            However, if

section 86.40 is confined to costs attributable to the hearing and

excludes expenses incurred for medical treatment and evaluations, the

conflict is eliminated.

      Additionally, the language of the rule promulgated by the

commissioner lends itself to a construction that is harmonious with the

two statutes. See Iowa Admin. Code r. 876—4.33 (“Costs taxed . . . shall

be . . . the reasonable costs of obtaining . . . reports.”). A “report” is a

“formal oral or written presentation of facts or a recommendation for

action.” Black’s Law Dictionary 1492 (10th ed. 2014). The word “obtain”

is used as a modifier in the rule and means “[t]o bring into one’s own

possession; to procure, esp[ecially] through effort.” Id. at 1247. Thus,

the concept of obtaining a report for a hearing is separate from the
                                     12

concept of a physical examination.        A “physical examination” is “[a]n

examination of a person’s body by a medical professional to determine

whether the person is healthy, ill, or disabled.” Id. at 680. The concept

of “obtaining” a report is separate from the process of “obtaining” an

examination.     Our legislature recognized as much by separately

authorizing the commissioner to appoint “a duly qualified, impartial

physician to examine the injured employee and make report.” Iowa Code

§ 86.38.   A medical report for purposes of a hearing is aligned with a

prehearing medical deposition. In the context of the assessment of costs,

the expenses of the underlying medical treatment and examination are

not part of the costs of the report or deposition.

      It is also important to recognize that our legislature separately

provided for the taxation of costs “incurred in the hearing” and for the

reimbursement of fees and transportation expenses “incurred for [an]

examination.”   See Iowa Code § 85.39; id. § 86.40.      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.        Id. § 85.39; id. § 86.40.      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. See id. § 85.27. Yet, costs necessary to conduct a hearing

adopt an entirely different approach predicated on the discretion of the

commissioner.    See id. § 86.40.    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.
                                    13

      Accordingly, we reject Young’s argument that hearing costs include

the expenses of an independent examination because the examination is

necessary to obtain a report on the results of the examination for a

hearing. We agree that a physician’s written report of an examination

and evaluation under section 85.39 would be a reimbursable expense

under section 85.39, just as an unreimbursed written report of an

examination and evaluation, like deposition testimony and witness fees,

could be taxed as hearing costs by the commissioner. Yet, a physician’s

report becomes a cost incurred in a hearing because it is used as

evidence in lieu of the doctor’s testimony.       The underlying medical

expenses associated with the examination do not become costs of a

report needed for a hearing, just as they do not become costs of the

testimony or deposition. The logic of Young’s argument is not supported

by the language of the governing statutes or the overall workers’

compensation scheme.

      Finally, when a general statute conflicts with a specific statute, the

more specific statute normally prevails. Kelly, 525 N.W.2d at 411; see

also Iowa Code § 4.7 (providing the special provision prevails if the

statutes cannot be construed to give effect to both).         This rule of

statutory construction militates in favor of Iowa Code section 85.39

governing the assignment of IME fees, as it is a specific provision

governing only a narrow subset of fees and expenses, whereas Iowa Code

section 86.40 is a general provision otherwise governing “[a]ll costs

incurred in the hearing before the commissioner.” Iowa Code § 85.39; id.

§ 86.40; see also Christiansen v. Iowa Bd. of Educ. Exam’rs, 831 N.W.2d

179, 189 (Iowa 2013) (“[T]he more specific provision controls over the

general provision.”). Moreover, “Iowa statutes providing for recovery of

costs are strictly construed.” Hughes v. Burlington N. R.R., 545 N.W.2d
                                    14

318, 321 (Iowa 1996).     Fee-shifting statutes using “all costs” language

have been construed “to limit reimbursement for litigation expenses to

those allowed as taxable court costs.” City of Riverdale v. Diercks, 806

N.W.2d 643, 660 (Iowa 2011) (denying reimbursement for deposition

expenses that did not comply with Iowa Rule of Civil Procedure 1.716).

      We conclude section 85.39 is the sole method for reimbursement of

an examination by a physician of the employee’s choosing and that the

expense of the examination is not included in the cost of a report.

Further, even if the examination and report were considered to be a

single, indivisible fee, the commissioner erred in taxing it as a cost under

administrative rule 876—4.33 because the section 86.40 discretion to tax

costs is expressly limited by Iowa Code section 85.39.

      Our   legislature   established    a   statutory   process   to   govern

examinations of an injured worker in order to obtain a disability rating to

determine the amount of benefits required to be paid by the employer.

Neither courts, the commissioner, nor attorneys can alter that process by

adopting contrary practices.       If the injured worker wants to be

reimbursed for the expenses associated with a disability evaluation by a

physician selected by the worker, the process established by the

legislature must be followed.   This process permits the employer, who

must pay the benefits, to make the initial arrangements for the

evaluation and only allows the employee to obtain an independent

evaluation at the employer’s expense if dissatisfied with the evaluation

arranged by the employer. Iowa Code § 85.39.

      Young argues the process is unfair to workers because the

employer has too much control over the evaluation and can impose

adverse consequences on the employee. She argues the process unfairly

limits her to one reimbursable, independent evaluation and could permit
                                        15

employers to sabotage the claim process by failing to initiate the

evaluation process. Yet, these arguments have been impliedly rejected

by the legislature in enacting section 85.39.             Additionally, the

consequences feared by Young fail to consider the authority given to the

commissioner by the legislature to order an examination and report of

the injured worker by an impartial physician.          Id. § 86.38.   If an

employer unduly delays in seeking an examination under section 85.39,

or fails to obtain an examination, the employee may request the

commissioner to appoint an independent physician to examine the

employee and make a report. Id.

      Overall, the evaluation process provided by our legislature was

conceived at the same time the workers’ compensation statute was

conceived.   See 1913 Iowa Acts ch. 147, § 12 (codified at Iowa Code

§ 2477-m11 (Supp. 1913)).         See generally 1913 Iowa Acts ch. 147

(codified at Iowa Code §§ 2477-m through 2477-m50). It was part of the

original purpose of the workers’ compensation law to provide a prompt

resolution of claims without litigation.     Shepard v. Carnation Milk Co.,

220 Iowa 466, 469, 262 N.W. 110, 112 (1935). We must adhere to this

process until otherwise directed by the legislature. At the center of this

controversy is the battle of medical experts. If injured workers believe

the battle favors the employer, the change sought must come from the

legislature. We cannot interpret the statutory process to undermine or

defeat the intent of the legislature.

      V. Conclusion.

      We conclude the commissioner erred in interpreting Iowa Code

sections 85.39 and 86.40 (2009) and Iowa Administrative Code rule

876—4.33. We therefore affirm the decision of the court of appeals. We

remand to the district court to remand the case to the commissioner for
                                    16

further proceedings consistent with this decision.       Only the costs

associated with the preparation of the written report of Dr. Stoken can be

assessed as costs of the hearing.    We tax the costs of this action to

Young, pursuant to Iowa Rule of Appellate Procedure 6.1207.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

      All justices concur except Hecht, J., who dissents and is joined by

Appel and Zager, JJ., and Appel, J., who dissents and is joined by Hecht

and Zager, JJ.
                                     17

                  #14–0231, Des Moines Area Reg’l Transit Auth. v. Young

HECHT, Justice (dissenting).

      Every square is a rectangle, but not every rectangle is a square.

Although Dr. Stoken apparently believed she was performing an

examination and preparing a report under Iowa Code section 85.39 (a

square), I find no reason for concluding the commissioner abused his

discretion in concluding the doctor’s report was taxable under the

agency’s rule on taxation of costs (a rectangle).     Accordingly, I would

vacate the decision of the court of appeals and affirm the district court’s

judgment   affirming   the   commissioner’s   taxation   of   the   cost   of

Dr. Stoken’s report to Des Moines Area Regional Transit Authority

(DART).

      Just a few months ago, we concluded the Iowa Code “does not

provide the sole basis for the [workers’ compensation] commissioner to

require an employer file a first report of injury.” Denison Mun. Utils. v.

Iowa Workers’ Comp. Comm’r, 857 N.W.2d 230, 238 (Iowa 2014). The

commissioner can therefore utilize delegated rulemaking authority to

promulgate rules ensuring the same functional result in “circumstances

beyond those already required” by the workers’ compensation statutes.

Id. Likewise, I believe Iowa Code section 85.39 does not provide the sole

basis for the commissioner’s authority to shift to the employer the

reasonable cost incurred by claimants obtaining medical evidence based

in part on an examination. In other words, this case illustrates another

application of the principle we applied in Denison.

      The commissioner has express statutory authority to tax costs in

workers’ compensation cases.      Iowa Code § 86.40 (2009) (“All costs

incurred in the hearing before the commissioner shall be taxed in the

discretion of the commissioner.”).   The commissioner has implemented
                                          18

this authority through an administrative rule specifying the categories of

taxable costs. Iowa Admin. Code r. 876—4.33. The rule provides that

costs may include “the reasonable costs of obtaining no more than two

doctors’ or practitioners’ reports.”          Id.   Rule 876—4.33 is, in my view,

comfortably within the statutory authority granted to the commissioner.

Section 86.40 vests the commissioner with discretion to tax costs; rule

876—4.33 merely defines which costs are taxable in the exercise of that

discretion.    Rule 876—4.33 does not require the commissioner to tax

costs; it therefore does no more than the legislature authorized.

Although      the    circumstances       of     this   case    did    not    authorize

reimbursement to Young for Dr. Stoken’s report under section 85.39

because DART had not obtained an evaluation of Young’s permanent

disability when Dr. Stoken prepared her report, the commissioner clearly

had discretion to tax the reasonable cost incurred by Young in obtaining

Dr. Stoken’s report as a cost under section 86.40 and rule 876—4.33.

       In evaluating the commissioner’s exercise of discretion, we should

consider the common purposes of section 85.39 and rule 876—4.33. The

animating remedial principle undergirding the statute and the rule is

that claimants must not be deterred by economic realities from obtaining

and presenting evidence supporting their claims at a hearing. Through

cost shifting, section 85.39 ensures claimants will be able to obtain and

offer in evidence a physician’s opinion on disability countering or

supplementing an opinion obtained by the employer or its insurer. 1 See

       1Although   section 85.39 expressly provides that the commissioner may transfer
the cost of an examination of the claimant and makes no express reference to the cost of
a report resulting from the examination, the essential purpose of the statute aids
claimants in obtaining medical opinions supporting their claims. See Iowa Code
§ 85.39. Because examinations under section 85.39 have no practical utility for a
claimant or an employer if examining physicians do not memorialize relevant opinions
in a report suitable for presentation at a hearing, it should come as no surprise that in
                                          19

Iowa Code § 85.39.            Rule 876—4.33 similarly aids claimants by

permitting the commissioner to shift the cost of obtaining two experts’

reports offered in evidence by the claimant at a hearing.                    See Iowa

Admin. Code r. 876—4.33. Thus, the fundamental cost-shifting function

of the statute and the rule is calculated to level the workers’

compensation playing field by ensuring claimants lacking financial

resources will be able to obtain and present medical evidence supporting

their claims. In this important cost-shifting sense, physicians’ reports

and the opinions they communicate are fungible, whether the costs of

obtaining them are shifted under section 85.39 or rule 876—4.33.

       I believe the majority fails to consider another common feature of

reports generated by physicians as a consequence of section 85.39

examinations and other reports generated by physicians and offered in

evidence under rule 876—4.33. In both instances, physicians’ reports

express expert opinions routinely based on a factual foundation

consisting of a recent examination of the claimant, the claimant’s

medical history as evidenced by medical records, and information about

the alleged injury gleaned from the claimant and other sources in the

particular case.      If such reports fail to take account of any of these

foundational elements, they will likely be criticized by the opposing party

and be given less weight by the fact finder. Put another way, whether

generated as a consequence of a claimant’s invocation of the section

85.39 procedure or for presentation in evidence as an element of the

________________________
the workers’ compensation world the essential objective of a party invoking the benefit
of the statute is a report expressing opinions on the nature and extent of the claimant’s
disability. Physicians performing examinations for claimants or employers under
section 85.39 therefore routinely prepare reports documenting their opinions for
presentation at hearings as an essential aspect of their work under the statutory
procedure.
                                    20

claimant’s costs under rule 876—4.33, physicians’ reports pack less

probative force if they are not based on the same foundational

components.     A physical examination of the claimant is certainly a

crucial foundational component of reporting physicians’ opinions in

workers’ compensation cases. Because this is true, it seems sensible to

expect that the cost of obtaining a medical report taxed under rule 876—

4.33 would include the reasonable cost of an examination and would be

similar in amount to the cost of obtaining reports generated as a

consequence of examinations performed under 85.39.

       The experts’ written reports, whether generated for the claimant at

the employer’s cost as a consequence of a claimant’s invocation of

section 85.39 or for presentation by the claimant as evidence and taxed

as a cost under rule 876—4.33, are routinely offered in evidence as

exhibits at workers’ compensation hearings in lieu of the physicians’

much more expensive live testimony or deposition testimony. Because

the factual foundation, content, and purpose of the reports are similar in

each instance, I conclude they are for all practical purposes fungible for

purposes of the commissioner’s taxation of costs under the agency’s rule.

       Furthermore, the majority reaches a result likely to produce

untoward    consequences.      Under     the   majority’s   interpretation,   if

Dr. Stoken had spent the same amount of time and issued an identical

report in this case, but relied only upon extensive study of Young’s

existing medical records—and perhaps conducted additional research—

the reasonable cost of her report would unquestionably be taxable under

the agency’s rule. As I have already noted, reports offered in evidence in

workers’ compensation cases and taxed under the agency’s rule are

routinely based in part on recent physical examinations of claimants.

Such    examinations   are   sensibly    and   routinely    deemed   essential
                                         21

foundational work informing physicians’ opinions detailed in medical

reports. Indeed, the taxable cost of “obtaining” a report under section

86.40 and rule 876—4.33 has historically been based—and must as a

practical matter surely continue in the future to be based—on more than

the value of the physician’s time as a scrivener. 2            We cannot expect

physicians to donate their time when formulating the opinions they

express in their reports in workers’ compensation cases. To be sure, the

universe of physicians willing to prepare reports in such cases will shrink

drastically if compensation is denied them for time spent performing

physical examinations informing their opinions.

       I recognize we have stated section 85.39 is not intended “merely to

aid the claimant’s discovery.”        McSpadden v. Big Ben Coal Co., 288

N.W.2d 181, 194 (Iowa 1980). But the legislature has specifically given

the commissioner authority to tax costs in his or her discretion.               See

Iowa Code § 86.40. I would defer, as this court routinely does, to the

commissioner’s interpretation of agency rules. See, e.g., Neal v. Annett

Holdings, Inc., 814 N.W.2d 512, 518 (Iowa 2012); Boehme v. Fareway

Stores, Inc., 762 N.W.2d 142, 146 (Iowa 2009); see also John Deere

Dubuque Works v. Caven, 804 N.W.2d 297, 300–01 (Iowa Ct. App. 2011);

cf. Franich v. Real Estate Comm’n, 681 N.W.2d 620, 623 (Iowa 2004)

(“[W]e give ‘appropriate deference’ to the view of the Commission with

respect to the interpretation of . . . the rules adopted pursuant to the

authority granted in [chapter 543B].”). The legislature has granted the

workers’ compensation commissioner authority to make and enforce

       2Isuspect DART’s primary objection to the taxing of this particular cost stems
from its $2800 price tag. The agency rule only allows the commissioner to tax
reasonable costs. Iowa Admin. Code r. 876—4.33. If DART thought Dr. Stoken’s fee
was unreasonable in amount, it could have raised that argument before the
commissioner. It did not.
                                       22

“rules necessary to implement [the workers’ compensation statutes].”

Iowa Code § 86.8(1)(a).         Section 86.40 is indisputably a workers’

compensation statute granting the commissioner broad discretion to tax

costs.     Thus, our decision in this case should turn on whether the

commissioner’s interpretation of the agency rule implementing section

86.40 is “irrational, illogical, or wholly unjustifiable”—in other words,

whether it calls every rectangle a square.          Iowa Code § 17A.19(10)(l)

(emphasis added). For all the reasons stated above, I do not think the

commissioner’s      interpretation   comes   even    close   to   violating   this

deferential standard of review.       Accordingly, I respectfully dissent.       I

would affirm the taxation of the cost of Dr. Stoken’s report and hold the

reasonable cost of obtaining a physician’s report under rule 876—4.33

includes time spent performing a physical examination of the claimant.

         Appel and Zager, JJ., join this dissent.
                                     23

                   #14–0231, Des Moines Area Reg’l Transit Auth. v. Young

APPEL, Justice (dissenting).

      In my view, this case presents a relatively straightforward question

of statutory interpretation.

      The proper analysis begins with the general rule related to recovery

of costs in a workers’ compensation proceeding.       This general rule is

contained in Iowa Code section 86.40 (2009). This broadly framed cost-

recovery provision states, “All costs incurred in the hearing before the

commissioner shall be taxed in the discretion of the commissioner.” Id.

      There are several material features of this statute. First, “All costs

incurred in the hearing” are potentially recoverable.        Id. (emphasis

added). Not some costs, but all costs.

      Second, in order to be recoverable, the cost must be “incurred in

the hearing.” Id. (emphasis added). A report that is prepared for a party,

but for whatever reason is not used at the hearing, is not compensable

under the plain language of the statute.

      Third, the recovery of costs under Iowa Code section 86.40 is

subject to the exercise of discretion by the commissioner. There is no

statutory mandate that certain costs be recovered. Instead, there is a

statutory directive that the commissioner award costs in the sound

exercise of his or her discretion. Id.

      Pursuant to this broad discretionary authority vested in the

commissioner, the commissioner has promulgated a rule “to implement

Iowa Code section 86.40.”      Iowa Admin. Code r. 876—4.33.      This rule

generally provides for the recovery of “the reasonable costs of obtaining

no more than two doctors’ or practitioners’ reports.” Id. r. 876—4.33.

      And, a rule that allows for the recovery of the cost of obtaining a

report must be interpreted to include recovery of more than the cost of
                                    24

the physical components of the report or the cost of printing verbiage in

it. It would be an odd rule that allowed recovery of the cost of physical

production of a report only and not the cost of the mental processes

required to prepare the report.     If the mental processes required to

prepare a report include an examination, then it necessarily follows that

recovery of the cost of the examination is permitted in the discretion of

the commissioner.

      The majority somehow gets confused when it considers the

relationship between Iowa Code section 86.40 and Iowa Code section

85.39. Iowa Code section 86.40, along with its implementing rule, Iowa

Administrative Code rule 876—4.33, generally provides the framework

for awarding all costs incurred in the hearing. Iowa Code section 85.39,

however, does not deal with all costs incurred at the hearing in any way.

Instead, Iowa Code section 85.39 is an exceptional provision that allows

a claimant to recover the expense of a certain, narrow type of

examination prior to and unrelated to any hearing. Further, recovery of

costs under Iowa Code section 85.39 is not subject to the discretion of the

commissioner.    In short, Iowa Code section 85.39 provides for early

mandatory payment of a narrow category of costs not incurred in a

hearing provided the requirements of the section are met.

      As noted by Justice Hecht, the obvious purpose of Iowa Code

section 85.39 is to allow a claimant to obtain payment of the costs of a

critical type of expert examination—one related to industrial disability—

early in the workers’ compensation process.        It is an extraordinary

provision with respect to the timing of cost recovery.      It accelerates

payment of costs for which the employee would ordinarily have to wait

until the conclusion of the hearing. And, it eliminates any exercise of

discretion by the commissioner. A failure to meet the requirements of
                                        25

Iowa Code section 85.39 means that the party is not entitled to an early,

mandatory payment of certain costs. Nothing more, nothing less.

      The language of the statutes demonstrate that Iowa Code section

86.40, dealing with all costs incurred in a hearing in a workers’

compensation case, and Iowa Code section 85.39, dealing with

accelerated, upfront payment of an examination related to industrial

disability under certain conditions, are not in the least bit inconsistent or

in tension with one another. Nothing in Iowa Code section 85.39 impairs

the discretionary authority of the commissioner to award all costs

incurred in the hearing, pursuant to Iowa Code section 86.40.

Conversely, Iowa Code section 86.40 does not undermine the mandatory

duty of an employer to pay certain qualifying costs under Iowa Code

section 85.39.    The language of the two statutes creates a logical and

coherent policy on cost reimbursement in a workers’ compensation case.

      There is also nothing in the overall structure of the statute that

suggests, let alone requires, a different result.     In that regard, it is

important to note that Iowa Code section 86.40 solely addresses recovery

of costs incurred in a hearing before the commissioner. The provision

has nothing at all to do with medical treatment that the employer must

pay as a benefit under our workers’ compensation statute. It has nothing

to do with the power of an employer to direct the course of treatment. It

has nothing to do with unauthorized medical expenses to treat a worker.

It has nothing to do with the entitlement to an independent medical

examination. It only addresses potential recovery of all costs incurred at

a hearing. See, e.g., Albertini v. McDonald’s, 400 So. 2d 160, 161 (Fla.

Dist. Ct. App. 1981) (distinguishing between statutory provisions

authorizing reimbursement for medical treatment and a statute providing

for recovery of costs of litigation).
                                       26

      On the issue of awarding all costs incurred in the hearing, Iowa

Code section 86.40 is unqualified, not contradicted by any other statute,

and must be given full effect. Our duty is to read statutes harmoniously

when possible as it obviously is here, not to go out of our way to

manufacture a nonexistent conflict to promote judicially discovered

policy goals. See Kolzow v. State, 813 N.W.2d 731, 736 (Iowa 2012) (“If

more than one statute relating to the subject matter at issue is relevant

to the inquiry, we consider all the statutes together in an effort to

harmonize them.” (Internal quotation marks omitted.)).              Indeed, our

cases indicate we should conscientiously try to read statutes in harmony

and limit the scope of a general statute only if there is an “irreconcilable

conflict” with a more specific statute.       See, e.g., State v. Lutgen, 606

N.W.2d 312, 314 (Iowa 2000) (quoting 82 C.J.S. Statutes § 355, at 474

(1999)). We do not find irreconcilable conflict by implication. See, e.g.,

State v. Peters, 525 N.W.2d 854, 856–57 (Iowa 1994) (noting statutes

must actually conflict).

      The majority does not follow this basic approach to statutory

interpretation.   Instead, it relies on a judicially discovered “legislative

intent.” The legislative intent discovered by the majority is not found in

the text of the statutes or in the structure of the workers’ compensation

chapter,   does   not   arise   from   a    functional   analysis   of   workers’

compensation proceedings, and is not powered by some overriding policy

consideration that provides a convincing rationale for a narrow

interpretation of Iowa Code section 86.40.        In sum, Iowa Code section

85.39 does not cast a grim and menacing policy shadow over Iowa Code

section 86.40.

      For the foregoing reasons, and the reasons more thoroughly

canvassed by Justice Hecht, I would vacate the decision of the court of
                                     27

appeals   and   affirm   the   district   court   judgment   affirming   the

commissioner’s taxation of the costs of the report by Dr. Stoken to the

Des Moines Area Regional Transit Authority.

     Hecht and Zager, JJ., join this dissent.
