Court of Appeals Holds That Reimbursement of IME Under 85.39 is Limited to the "Typical Fee Charged by the Medical Provider to Perform an Impairment Rating""

 Midamerican Construction LLC v. Sandlin No. 22-0471 (Iowa App. Feb. 22, 2023)

This case solely involved the payment for an IME.  Defendants claimed that claimant was not entitled to reimbursement of the IME and if there was such reimbursement, the amount awarded was unreasonable. The commissioner awarded the full cost of the IME.

As a part of the case, Dr. Kenndy rated claimant's impairment as 0%. The fee for the impairment was $174.25.  Claimant subsequently saw Dr. Taylor for an IME and he provided a 2% impairment.  As a part of the IME, Dr. Taylor also determined causation.  His charge was $2020.00.  

Defendants argued that the IME should not be paid because Dr. Kennedy had not been retained by the employer, as required by 85.39 and IBP, Inc. v. Harker, 633 N.W.2d 322 (Iowa 2001).  The Court concluded that substantial evidence supported the commissioner's determination that defendants, through the medical case manager, had chosen Dr. Kennedy to perform the initial rating.  Therefore, the commissioner's finding that claimant was entitled to an 85.39 IME payment.

Defendants also argued that under the 2017 amendments to 85.39, only payment for the impairment rating was appropriate.  The revisions to 85.39(2) had indicated that the "reasonable fee for a subsequent examination by a physician of the employee's own choice" was to be reimbursed once a doctor retained by the employer had issued a rating.  Those revisions had also indicated that the determination of the reasonableness of the fee "shall be based on the typical fee charged by a medical provider to perform an impairment rating in the local area where the examination occurred."  85.39(2).

In this case, Dr. Taylor had indicated under his examination fee schedule that the costs for the impairment rating was $500, with the balance being attributable to the costs of an Independent Medical Exam.  The Court finds that because only $500 was for the impairment rating, the statute required that this was the "reasonable fee" under 85.39(2).  The Court concludes that only the costs of the impairment rating would be reimbursed under that revised statute.  To do otherwise, according to the Court, "would authorize payment for an expanded examination, report, and intensive reivew of rmedical records, in contravention of what the legislature has determined."  Although noting that an IME is a more involved process than simply providing an impairment rating, the Court concludes that the amendments to 85.39 required the limitation to the cost of the impairment rating.