Fourth Quarter 2018
By: Caitlin R. Kilburg
Question: Under what circumstances do you recommend a Utilization Review (UR) or an Independent Medical Examination (IME) in an otherwise compensable claim?
Short Answer: In Iowa, Defendants control medical care in Iowa, therefore, use of URs is limited as the Agency does not like when Defendants attempt to deny treatment that the doctor they authorized recommended. IMEs however can be useful in several instances including bolstering a treating doctor’s opinions, applying pressure to an authorized treating doctor who might not be moving a claim along as quickly as would be preferred, or to rebut a Claimant’s expert report.
Discussion: Iowa Code Section 85.27 allows Defendants to choose medical care as long as compensability has been accepted. This essentially allows Defendants to designate a treating medical provider. The flip side to this is the Claimant has the right to request alternate medical care from the Agency and is entitled to an IME at Defendants expense under Iowa Code Section 85.39.
Utilization Review (UR)
As a general rule, any recommendation or referral made by the authorized medical provider is automatically considered authorized. Therefore, using a UR to deny an authorized treating provider’s recommendations holds practically no value. If an authorized provider recommends a course of treatment and Defendants attempt to deny the treatment based on a UR the Agency will most certainly award Claimant the right to alternate medical care and; under a best case scenario; Defendants will be forced to provide the treatment recommended by the authorized provider. In the worst case scenario, the provider will lose control of medical care which can happen if the Agency finds Defendants have not provided medical care without undue inconvenience. One way to attempt to make a UR more useful is to take the results of the UR back to the provider who recommended treatment and ask the provider to author an opinion as to whether the results of UR alter their recommendations and; if not, ask the provider to provide a rebuttal as to why the UR is incorrect.
Independent Medical Examination (IME
IMEs serve several purposes. At the onset of a claim an IME is often used to address causation. The case law in Iowa is very clear that the issue of causation is the purview of experts. If a claim involves prior medical history, a questionable mechanism of injury, or co-morbidities; an IME to address causation is recommended, especially if the opinion from the treating doctor cannot be trusted or Claimant is seeking unauthorized care. It is often a good idea to seek the causation opinion from the IME doctor and then circle back around and ask the treater to simply agree with the IME opinion.
IMEs can also be very useful in order to move a claim along where treatment seems to be dragging out. If a treating doctor will not give you maximum medical improvement, an IME opinion to address future treatment, relatedness of ongoing symptoms, and maximum medical improvement can be appropriate. If the IME opinion differs from the treating provider’s recommendation and you cannot get the treating doctor to agree with the IME opinion a decision will need to be made as to whether Defendants want to stand behind the IME or the authorized treating provider. While often at trial the authorized treating doctor’s opinion will trump the expert Claimant saw one time, the IME may provide you the good faith leverage you need to settle the claim.
IMEs have also become commonplace once Claimant reaches maximum medical improvement. Under Iowa Code Section 85.39, Claimant is entitled to an IME at the Defendants’ expense once a rating has been given and Claimant perceives it to be too low. Once Claimant has obtained his or her own IME it is often appropriate, and the Agency rather expects, a rebuttal expert report. The rebuttal IME can serve two purposes as it both rebuts Claimant’s expert and potentially bolsters the treating physician’s opinion.
Functional Capacity Evaluations can also be useful defense tools. However, the statute lacks any mechanism for forcing Claimant to undergo a Functional Capacity Evaluation. Asking your IME provider to order a Functional Capacity Evaluation as part of their IME exam allows Defendants to compel Claimant to attend a Functional Capacity Evaluation.
Practice Tip: In Iowa, choosing the right IME doctor goes beyond choosing someone who is known to be defense friendly, fair, reasonable, ect. Paying attention to who the treating doctor is or who the Claimant chooses for his or her IME doctor can often dictate the appropriate choice of IME doctor due to professional rivalries among doctors, knowledge of doctors’ previous employers, or allegiances/friendships that make it more or less likely than your doctor will agree or disagree with the opinion on hand. Knowing or inquiring into these relationships can provide you with an advantage when selecting a doctor.