An IME can Counter a Request for a Diagnostic Test

Monday, August 9, 2010 | 0

By Michael Rabinowitz
Banker Lopez Gassler

Last February, I wrote about the common misplaced notion that a request for a diagnostic test by an authorized doctor must accompany proof that the test is for a compensable body part. There is a slew of case law that says otherwise (see Chance v. Polk County Schools).

But, what if the employer/carrier has an independent medical examination (IME) to counter the recommendation of an authorized doctor?

In Laxner v. Target Corp., the Court acknowledges the long standing rule that a claimant need not prove major contributing cause is the need for a diagnostic test.  A claimant merely needs to show that the diagnostic test is reasonably required to determine the cause of claimant’s injuries, even if the test is for a non-compensable body part.

However, the Court makes an exception in Laxner. In this case, the E/C obtained an IME who testified that since claimant’s injuries and diagnoses were already known the diagnostic tests were not required to for the purposes as recommended by the authorized ortho.  The rationale is that with the counter opinion of the IME, the trial court judge has the competent substantial evidence to decide whether the diagnostic test is reasonable to determine diagnosis.

The question I have is whether an IME is worth it just to dispute a diagnostic test.  Most diagnostic tests are relative cheap when their price is reduced by the statewide fee schedule (I’m talking a few hundred bucks up to $1,000).   Whereas an IME will cost you at least $1,500 to $2,000 plus a fee for records review, plus transportation of claimant (if necessary), plus a deposition charge. 

You could easily rack up to $5,000 just to fight a $500 MRI scan. Where is the economic sense in that litigation strategy. My advice today is the same as I wrote back in February, 2009:

“My advice to adjusters remains the same: even though the diagnostic test may be for a non-compensable injury/condition/body part, you still have to authorize the test. To fight it would be a waste your litigation resources."

Now, if that test comes up positive, then you can look into denying care if the authorized doctor (or a peer review or IME) believes the positive result is not related to the compensable accident.”

Subscribers may download the Laxner decision by clicking on the case title in the sidebar.

Michael Rabinowitz is an attorney for Banker Lopez Gassler, a Tampa-based workers' compensation defense firm. This column was reprinted with his permission from the firm's blog, http://workerscompblog.wordpress.com/