What does the supreme court’s decision in Dart mean for claimants?
The initial reaction to the Supreme Court’s decision in Des Moines Area Reg’l Transit Auth. v. Young, No. 14-0231 (Iowa 2015), by claimants’ attorneys was decidedly negative. We do already know that the Agency is going to follow DART, as the Commissioner issued two appeal decisions on July 1, 2015 that cited it approvingly. LaGrange v. Nash Finch Co., File No. 5043316 (App. 7/1/15); Alcorta v. Broadlawns Medical Center, File No. 5042157 (App. 7/1/15). A careful reading of DART, however, reveals that it really is not so bad for claimants and, in fact, it contains some dicta that may prove very useful for claimants in the future.
The biggest problem with DART is not so much the fact that the examination is not taxable as a cost where the claimant has failed to follow the procedure required by section 85.39, but the fact that defendants are citing it for the proposition that they no longer have to reimburse the cost of the report when the claimant has followed section 85.39. The argument proceeds by citing the following from DART: “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.” Defendants take this to mean that even if claimant follows section 85.39 to the letter, they are only entitled to reimbursement of the charge for the examination and must await hearing to have the cost of the report itself reimbursed as a cost. A thorough reading of the entire decision reveals that this is really not the case.
First, we turn to the Court’s own statement of what it was deciding. The Court explicitly limited its inquiry to:
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 the evaluation at the hearing.
(emphasis added). The Court is clear that it is not deciding anything about evaluations and reports that are properly obtained under section 85.39 and for which reimbursement is sought. To make things even more clear, the Court later states that it agrees “that a physician’s written report of an examination and evaluation under section 85.39 would be a reimbursable expense under section 85.39.”
It is difficult to imagine how the Court could have been more clear that the report is a reimbursable expense under 85.39, but, of course, the Court went on to muddy the waters with the sentence being cited by defendants. I believe, however, that there is a manner of reconciling the sentence being cited by defendants with what came before it. Specifically, it is a compound sentence that needs to be read as two separate parts. So, really, what the Court was saying is (1) the only way an examination can ever be reimbursed is if the employee follows the 85.39 procedure and (2) further explaining, by way of rationale, that the reason for this is that an examination and a report are two separate things.
Finally, there is plenty to like about the DART decision. The Court quite clearly states that claimants may avail themselves of section 85.39 multiple times during the litigation of a claim, each time the employer obtains a new rating. In other words, claimants may have lost the right to be reimbursed for the examination when 85.39 is not followed; however, claimants have gained the ability to be reimbursed for multiple IMEs. In my opinion, claimants’ gains from DART exceed their losses, as we know from experience that the examination is the least expensive part of an IME. This analysis will, of course, await further guidance from the Agency.