Newt Marine Service Dba and Liberty Mutual Insurance v. John Abitz

IN THE COURT OF APPEALS OF IOWA

No. 15-1957
Filed July 27, 2016

NEWT MARINE SERVICE DBA and
LIBERTY MUTUAL INSURANCE,
Plaintiffs-Appellants,

vs.

JOHN ABITZ,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeanie Kunkle Vaudt,

Judge.

An employer appeals the ruling on judicial review affirming a grant of

alternate medical care to an employee. AFFIRMED.

Jeffrey W. Lanz of Huber, Book, Lanz & McConkey, P.L.L.C., West Des

Moines, for appellants.

Mark J. Sullivan of Reynolds & Kenline, L.L.P., Dubuque, for appellee.

Considered by Vogel, P.J., and Doyle and Bower, JJ.
2

DOYLE, Judge.

Newt Marine Service DBA1 (Newt Marine) challenges the grant of an

employee’s petition for alternate medical care in this workers’ compensation

action. It argues the deputy workers’ compensation commissioner abused his

discretion. Because the deputy commissioner’s findings were supported by

substantial evidence and the law was properly applied, we affirm the denial of

Newt Marine’s petition for judicial review.

I. Background Facts and Proceedings.

John Abitz was employed by Newt Marine when he sustained injuries to

his right shoulder in 2013 and 2014.2 Abitz received medical treatment from

Dr. David Field at West Side Orthopedic Surgeons. In June 2014, Dr. Field

performed arthroscopic surgery on Abitz’s shoulder.

At a medical appointment on January 15, 2015, Dr. Field restricted Abitz

to lifting no more than seventy-five pounds, which he stated was “permanent at

this point.” Dr. Field also stated no overhead restrictions were necessary.

However, the “Patient Visit Record” that corresponded to that visit states:

[Abitz’s] pain has dissipated considerably. He does not complain of
any weakness today. He is actually back to his job and lifting up to
75 pounds. His clinical examination reveals no pain with forward
flexion. His strength of his rotator cuff—i.e., supraspinatus, in
intact. There is no weakness with external rotation or his biceps.
Clearly, his shoulder has responded now. There is no need
for an arthrogram versus MRI study. I released him to work today
1
Newt Marine’s workers’ compensation insurance carrier, Liberty Mutual Insurance Co.,
is also a party to this appeal. For simplification, we will refer only to Newt Marine.
2
Abitz alleges four work-related injuries occurred between November 2013 and
November 2014. Newt Marine admits the first two of these injuries, occurring in
November 2013 and January 2014, were work-related injuries for which it is liable, but it
denies liability for an alleged work-related injury occurring in August 2014 or an injury
occurring in November 2014 when Abitz was in an automobile collision on his way to
physical therapy, arguing the latter two were sequelae of the initial injury.
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and placed him on a restriction of 75 pounds, although I would
assume in the next month or so that could be totally lifted. It
appears that his job has been handled easily with this restriction in
any event. I am pleased with his progress and I do think he has
reached [maximum medical improvement] with his shoulder.

Although Abitz had been approved for physical therapy, Dr. Field claimed

physical-therapy was no longer helping Abitz and cancelled Abitz’s remaining

appointments.

Abitz denied that his pain had dissipated or gone away by January 15,

2015, or that he made any statement of that nature to Dr. Field. Abitz also

denied stating he could lift seventy-five pounds, as Dr. Field reported. Abitz

claimed Dr. Field never tested his pain level or strength or gave him notice that

he was conducting an impairment evaluation. Abitz claimed that when he

expressed concern that his pain remained, Dr. Field told him, “Don’t worry. It will

go away. You’re fine.”

Dr. Field gave a different account of Abitz’s injuries and restrictions in a

written statement on January 22, 2015, exactly one week after Abitz’s medical

visit. When asked if Abitz had any permanent restrictions, Dr. Field responded in

the negative—in contrast to his notes from the January 15, 2015 office visit.

Dr. Field also lifted the weight restriction he had entered one week earlier and

assigned Abitz a three-percent permanent impairment to his upper extremity.

On February 5, 2015, Abitz’s attorney gave notice that Abitz was

dissatisfied with Dr. Field’s care. He filed a petition for alternate medical care,

and a hearing was held on the matter in March 2015. At the hearing, Abitz

testified it did not make sense for him to continue treatment with Dr. Field,

opining that the doctor was “not listening to the patient, and just going with what
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they think and not actually looking at what’s wrong.” Abitz requested that he

receive alternate medical care from a doctor specializing in shoulder injuries at

the University of Iowa Hospitals and Clinics.

Two days after the hearing, the deputy workers’ compensation

commissioner issued a decision, finding Abitz had met his burden of showing his

employer failed to provide medical treatment reasonably suited to fully treat his

work injuries and authorizing the specialist to evaluate and treat Abitz’s shoulder

injury. Newt Marine filed a petition for judicial review, which the district court

denied. Newt Marine appeals.

II. Scope and Standard of Review.

Iowa Code chapter 17A (2015) governs our review of final agency action.

See Des Moines Area Reg’l Transit Auth. v. Young, 867 N.W.2d 839, 841-42

(Iowa 2015). Applying the standards set forth in section 17A.19(10) to the

commissioner’s decision, we decide whether the district court correctly applied

the law in exercising its judicial review function. See id. at 842. If we reach the

same conclusions as the district court, we affirm. See id. If not, we reverse.

See id.

We review the commissioner’s interpretation of workers’ compensation

statutes for the correction of errors at law. See Iowa Code § 17A.19(10)(c)

(stating the court should grant relief where the agency decision is “[b]ased upon

an erroneous interpretation of a provision of law whose interpretation has not

been clearly vested by a provision of law in the discretion of the agency”);

Ramirez-Trujillo v. Quality Egg, L.L.C., 878 N.W.2d 759, 769 (Iowa 2016)

(holding the legislature did not expressly vest “the workers’ compensation
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commissioner with authority to interpret the workers’ compensation statutes in

chapter 85”). If the commissioner’s interpretation rests on an error at law, we

substitute our own judgment for the commissioner’s interpretation of chapter 85.

See Ramirez-Trujillo, 878 N.W.2d at 770.

The workers’ compensation commissioner has the discretion to make

factual determinations, and we defer to those fact-findings if supported by

substantial evidence. See Larson Mfg. Co. v. Thorson, 763 N.W.2d 842, 850

(Iowa 2009). Evidence is substantial if “the quantity and quality of evidence that

would be deemed sufficient by a neutral, detached, and reasonable person, to

establish the fact at issue when the consequences resulting from the

establishment of that fact are understood to be serious and of great importance.”

Iowa Code § 17A.19(10)(f)(1). Rather than questioning whether the evidence

before us may support a different finding than that made by the commissioner,

we ask whether the evidence supports the finding actually made. See Larson

Mfg. Co., 763 N.W.2d at 850.

III. Alternate Medical Care.

Iowa Code section 85.27 requires that employers furnish care to injured

employees, but it also allows employers to direct that medical care. See

Ramirez-Trujillo, 878 N.W.2d at 771. An employer’s right to control care is not

absolute, however. See id. If an employee believes the employer has offered

care that is not reasonably suited to treat the injury sustained, the employee may

seek approval from the workers’ compensation commissioner to obtain alternate

medical care. See id. at 773.
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The employee seeking alternate medical care bears the burden of proving

the care authorized by the employer is unreasonable. See R.R. Donnelly & Sons

v. Barnett, 670 N.W.2d 190, 195 (Iowa 2003). Whether that care is reasonable is

a question of fact. See Pirelli-Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433,

436 (Iowa 1997). Therefore, we must determine whether substantial evidence

supports the reasonableness determination. See Iowa Code § 17A.19(10)(f).

In his ruling, the deputy commissioner found:

[I]t is undeniable that Dr. Field has, without benefit of an MRI or
other testing, concluded [Abitz] cannot benefit from further
treatment from him. He has assigned a low rating of impairment,
no work restrictions, and told [Abitz] he has nothing further to offer
him. Yet [Abitz] continues to experience chronic, and increasing,
pain. He credibly testified to losing much of his arm strength. His
sleep is disrupted. The picture painted by [Abitz] differs
significantly from the one painted by Dr. Field. It is noteworthy that
Dr. Field made his final conclusions without again seeing [Abitz] for
an up-to-date assessment of his condition.

The deputy commissioner then determined the care offered by Newt Marine was

unreasonable. Newt Marine argues this finding is not supported by substantial

evidence.

One factor that has figured “prominently” in determining whether

employer-authorized medical care is reasonable is the effectiveness of the care.

Pirelli-Armstrong Tire Co., 562 N.W.2d at 437.

It has been observed that “it [is] proper to allow medical expenses
to an employee treated by a physician of his own choice after the
physician selected by his employer has failed or refused to give
necessary treatment or has been unsuccessful in his treatment,
particularly where this was done with the knowledge of, and without
objection by, the employer.”

Id. (alteration in original) (emphasis added) (quoting 99 C.J.S. Workmen’s

Compensation § 273, at 933 (1958)). Treatment is reasonable if it “‘does not
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seriously endanger claimant’s life or health and . . . is shown to be reasonably

certain to minimize or cure the disability for which compensation is sought . . . .’”

Id. (quoting Stufflebean v. City of Fort Dodge, 9 N.W.2d 281, 238 (Iowa 1943)).

In Pirelli-Armstrong Tire Co., the claimant complained his pain had

increased while the use of his limb decreased during the year he received

treatment from his employer-approved physician. See id. In authorizing

alternate medical care, the deputy commissioner found the employer-approved

physician had “no further care to offer the claimant.” Id. at 435. The deputy

commissioner concluded that the failure to offer care amounted to no care, and

“[n]o care is equal to care not reasonably suited to treat the injury.” Id. Our

supreme court agreed, holding that “when evidence is presented to the

commissioner that the employer-authorized medical care has not been effective

and that such care is ‘inferior or less extensive’ than other available care

requested by the employee, the commissioner is justified by section 85.27 to

order the alternate care.” Id. at 437 (citation omitted).

Here, Dr. Field discontinued Abitz’s treatment and found he had reached

maximum medical improvement. Dr. Field reached these conclusions based on

what Abitz alleges were misstatements regarding his pain and lifting ability, and

without conducting any tests or further investigation. Dr. Field then removed the

lifting restriction he had placed on Abitz just one week after he imposed it. Newt

Marine notes this was in keeping with the notes Dr. Field entered on the “Patient

Visit Record” following the January 15, 2015 visit, which states the doctor

“assume[d] in the next month or so that could be totally lifted.” However,

Dr. Field formed this opinion based on the same allegedly deficient information
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cited above. It is also concerning that Dr. Field lifted the restriction only seven

days after he imposed it and did so on an assumption, without evaluating Abitz.

In any event, Abitz complains his pain has increased and his shoulder

strength has decreased as a result of his injuries. Although there is also

evidence to the contrary, a reasonable person could find the medical care

provided by Newt Marine has not been effective. Abitz is now without further

treatment options through the medical care authorized by Newt Marine because

Dr. Field has found Abitz reached maximum medical improvement. Therefore,

the medical treatment provided by Newt Marine—or the lack thereof—is less

extensive than the care Abitz requests, and the deputy commissioner was

justified in authorizing alternate medical care. See id. at 437. Substantial

evidence supports the deputy’s finding, and therefore, we affirm.

Newt Marine also argues the deputy commissioner erred in applying the

law to the facts of this case, rendering the deputy commissioner’s decision

irrational, illogical, or wholly unjustifiable. See Iowa Code § 17A.19(10)(m).

Specifically, Newt Marine claims the deputy commissioner misstated the law

when, after noting the “great discrepancy between [Abitz]’s description of his

symptoms and impairment, and the assessment of them by Dr. Field,” the deputy

commissioner held “more information is always better than less” and it “is better

to err on the side of caution and be sure we know what is going on with [Abitz]’s

shoulder before resolving this claim.” It argues the deputy failed to hold Abitz to

his burden of proving the medical treatment it offered was unreasonable and

instead applied an improper desirability standard. See Long v. Roberts Dairy

Co., 528 N.W.2d 122, 124 (Iowa 1995) (noting a claimant’s desire for alternate
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medical treatment is not determinative of whether the treatment offered by the

employer is inferior or less extensive than the claimant’s proposed treatment).

We are unable to find the deputy commissioner misapplied the law. The

ruling articulates the appropriate standard stating: “By challenging the employer’s

choice of treatment—and seeking alternate care—claimant assumes the burden

of proving the authorized care is unreasonable. . . . The employer’s obligation

turns on the question of reasonable necessity, not desirability.” Citing both Long

and Pirelli-Armstrong Tire Co., the ruling then states: “The commissioner is

justified in ordering alternate care when employer-authorized care has not been

effective and evidence shows that such care is ‘inferior or less extensive’ care

than other available care requested by the employee.” The deputy commissioner

made the statements complained of while analyzing the reasonableness of the

medical care authorized by Newt Marine, before concluding Abitz “has carried his

burden of proof to show [Newt Marine had] not provided medical treatment

reasonably suited to fully treat his work injuries.” The ruling is not irrational,

illogical, or wholly unjustifiable.

For the reasons above, the district court properly denied Newt Marine’s

petition for judicial review. Accordingly, we affirm.

AFFIRMED.