Opinion
No. 07-0221.
April 9, 2008.
Appeal from the Iowa District Court for Polk County, Robert Hanson, Judge.
The employer appeals the district court decision affirming the award of workers' compensation benefits to an employee by the Workers' Compensation Commissioner. AFFIRMED.
Patrick Waldron of Patterson Law Firm, L.L.P., Des Moines, for appellant.
Martin Ozga of Max Schott Associates, P.C., Des Moines, for appellee.
[EDITORS' NOTE: THE PUBLICATION STATUS OF THIS OPINION HAS NOT BEEN DETERMINED. THE PRECEDENTIAL VALUE OF CASES WHICH ARE NOT YET PUBLISHED IS GOVERNED BY IOWA CT. R. 6.14 (5).]
The employer appeals the district court decision affirming the award of workers' compensation benefits to an employee by the Workers' Compensation Commissioner. We affirm.
I. Background Facts Proceedings
Robert Gwinn injured his left foot on April 25, 2001, while he was employed by Bell Brothers Heating Air Conditioning. He was diagnosed with tendonitis of the Achilles tendon both by podiatrist Dr. Lee Evans on May 9, 2001, and Dr. Robert Eells on May 14, 2001. Neither X-rays nor a bone scan revealed any abnormalities and neither doctor found the Achilles tendon to be compromised. Gwinn attended physical therapy for five weeks, but continued to complain of pain in his left heel, despite the therapist's note that no symptoms could be reproduced during therapy sessions. After seeking other employment for six months, Gwinn left his employment with Bell Brothers in June 2001, but continued working in the field of heating and air conditioning installation, service, and repair.
Gwinn returned to Dr. Eells on June 24, 2002, after aggravating his foot injury at his new place of employment. Dr. Eells advised a buildup of a heel lift, stretching exercises, and medication. An MRI taken in November 2002 did not show any problems with the tendons in Gwinn's left foot. In April 2003, Gwinn was examined by Dr. Jacqueline Stoken, who opined Gwinn had Achilles tendonitis.
Gwinn obtained an independent review of his condition by Dr. Bruce Pichler on April 23 and again on May 8, 2003. Dr. Pichler diagnosed Gwinn with chronic Achilles tendonitis, aggravated by Haglund's Deformity, a bony growth at the back of the heel. In a May 24 letter to Gwinn's attorney, Dr. Pichler described a "partial disruption of the fibers of the left Achilles tendon." He noted that "[t]hese fibers are mechanically aggravated by a slightly enlarged boney prominence on the posterior aspect of the calcaneus." Because he found Gwinn had reduced muscle strength in his left foot, Dr. Pichler gave Gwinn a permanent partial impairment of twenty-four percent of his foot. Dr. Pichler recommended Gwinn's foot be casted for six weeks, and if his condition did not improve then surgery could be explored.
In June 2003, Gwinn requested alternative medical care with Dr. Pichler, under Iowa Code section 85.27(4) (2003). Bell Brothers' insurance carrier did not authorize treatment with Dr. Pichler, instead, referring Gwinn to orthopedic surgeon Dr. James Galles. On February 10, 2004, Dr. Galles found Gwinn had left heel Achilles tendonitis, but no evidence of soft tissue abnormalities, and recommended physical therapy. Because Gwinn had already undergone physical therapy, the insurer did not approve further therapy. A follow-up appointment with Dr. Galles was arranged for August 2004, but Gwinn failed to attend as he claimed his foot had "calmed down a little."
Gwinn returned to Dr. Pichler on November 10, 2004, because of reoccurring pain in his left heel. Dr. Pichler conducted a diagnostic ultrasound, which showed a tear in the Achilles tendon. On November 22, 2004, Dr. Pichler placed Gwinn in a cast for five weeks, but his condition did not improve.
On December 15, Gwinn filed a petition seeking an award for alternative medical care for treatment by Dr. Pichler. After a hearing, Deputy Workers' Compensation Commissioner Christensen found in a December 30, 2004 ruling that Gwinn had "failed to prove defendants have not offered prompt care reasonably suited to his injury." The deputy therefore denied Gwinn's request for treatment from Dr. Pichler. He noted, however, that Bell Brothers had offered Gwinn the opportunity to be reevaluated by Dr. Galles and if Gwinn was still dissatisfied with Dr. Galles' care, he "has the option of filing a subsequent alternate care petition."
Gwinn returned to Dr. Galles on January 11, 2005. After examining Gwinn and reviewing his medical records as provided to Dr. Galles by Gwinn's attorney, Dr. Galles concluded Dr. Pichler's proposed surgical treatment was not indicated from the objective findings. Dr. Galles also found that "neither a cast nor surgery were appropriate, and that claimant had no permanent impairment." However, he recommended a functional capacity evaluation to clear up any question of a permanent impairment and work restrictions. Gwinn returned to Dr. Pichler the next day, and Dr. Pichler recommended surgery. Unbeknownst to Bell Brothers, Gwinn underwent surgery on his Achilles tendon on January 19, 2005. The arbitration hearing for workers' compensation benefits was held six days later, on January 25, 2005, while Gwinn was still recovering from surgery.
Deputy Workers' Compensation Commissioner Heitland found Dr. Pichler's conclusions were consistent with Gwinn's testimony of his ongoing foot problems. The deputy concluded Gwinn had a permanent partial impairment to his left foot. Because there was no surgical report offered in evidence, the deputy did not determine a disability rating, stating "[a]ny assessment of his permanent partial disability will have to await a review-reopening proceeding when the results of the surgery are known." Gwinn was awarded healing period benefits beginning November 22, 2004, the date he began treatment with Dr. Pichler.
Gwinn sought reimbursement for the unauthorized care he received from Dr. Pichler. The deputy found:
[T]he employer has not denied liability for the injury itself. The employer did, however, in the hearing report, dispute liability for any permanent impairment of the foot.
. . . .
. . . . . They denied that the underlying condition the surgery sought to address was their responsibility. By denying that the alleged permanent impairment of the foot was causally connected to the work injury in the hearing report, the defendants were denying liability for that condition. The defendants cannot deny liability for a condition and yet control the medical care of that condition. The defendants cannot assert a lack of authorization defense for Dr. Pichler's bills, and they will be ordered to pay them.
Although no post-surgical report was offered into evidence, the deputy found Dr. Pichler's treatment was beneficial toward improving Gwinn's condition and ordered Bell Brothers to pay for Dr. Pichler's treatment. The deputy then designated Dr. Pichler as Gwinn's authorized treating physician. The Workers' Compensation Commissioner affirmed, as did the district court on judicial review. Bell Brothers appeals.
II. Standard of Review
Our review is governed by the Iowa Administrative Procedure Act. Iowa Code ch. 17A (2005); Acuity Ins. v. Foreman, 984 N.W.2d 212, 216 (Iowa 2004). We are bound by the agency's findings of fact if supported in the record as a whole and will reverse the agency's findings only if we determine that substantial evidence does not support them. Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006). However the "interpretation of workers' compensation statutes and related case law has not been clearly vested by a provision of law in the discretion of the agency." Finch v. Schneider Specialized Carriers, Inc., 700 N.W.2d 328, 330 (Iowa 2005). Therefore, we give the commissioner's interpretation of the law no deference and are free to substitute our own judgment. Id.
III. Permanent Impairment
In asserting there is not substantial evidence in the record to support the commissioner's finding that Gwinn had a permanent impairment to his left foot, Bell Brothers points out that none of the other physicians who examined Gwinn found any of the maladies as those found by Dr. Pichler. In addition none of the tests, including the MRI, X-rays, and a bone scan, revealed the tear in the Achilles tendon ultimately found by Dr. Pichler in an ultrasound test.
It is the commissioner's duty to weigh the credibility of witnesses. Arndt v. City of LeClaire, 728 N.W.2d 389, 394-95 (Iowa 2007). The commissioner found Dr. Pichler's presurgical assessment of Gwinn's condition was more credible than the assessment of the other physicians who examined Gwinn. The ultrasound conducted by Dr. Pichler detected a tear in Gwinn's Achilles tendon. The deputy's finding, adopted by the commissioner, was "[t]he ultrasound test, showing a tendon tear, is more consistent with the claimant's testimony and earlier reports to physicians of on-going symptoms, than the normal findings of the other doctors, which are at complete variance with the claimant's testimony."
We conclude the results of the ultrasound test and the reports of Dr. Pichler provide substantial evidence to support the commissioner's determination that Gwinn had a permanent partial impairment of his left foot.
As noted above, the commissioner did not give Gwinn a permanent disability rating because the results of his surgery were not known at the time of the arbitration hearing.
IV. Healing Period Benefits
Bell Brothers next contends there is not substantial evidence in the record to show the casting and surgery performed by Dr. Pichler were necessary. It asserts there is no causal connection between the injury and the care given by Dr. Pichler. These are essentially the same arguments as mentioned above-that other physicians did not have the same opinion as Dr. Pichler and other medical tests did not reveal a tear in Gwinn's Achilles tendon.
The deputy found, "[b]ased on the analysis above for permanency benefits, it is found that the casting and surgery performed by Dr. Pichler were necessary to address the claimant's work injury, and he is entitled to temporary benefits beginning November 22, 2004." The substantial evidence that supports a finding of permanent partial impairment supports a finding that Gwinn is entitled to healing period benefits beginning when he started treatment with Dr. Pichler, on November 22, 2004. We conclude the commissioner's decision is supported by substantial evidence.
V. Alternative Care
Bell Brothers argues that the commissioner's decision ordering it to pay for Dr. Pichler's medical services was in error because, at the time, he was not an authorized physician, and that the commissioner's decision was not supported by substantial evidence. Iowa Code section 85.27(4) provides a mechanism by which an aggrieved employee may seek alternate medical care beyond what has been authorized and offered by the employer:
If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of necessity therefor, allow and order other care.
This is not a case, however, where the employee was dissatisfied with the care offered. The employer had determined that the care had been adequate, that there was no permanent injury, and that no further care was required or to be provided.
The employer relies on the authorization defense which shields the employer from liability for unauthorized treatment and surgery. In R.R. Donnelly Sons v. Barnett, 970 N.W.2d 190, 196 (Iowa 2003), our supreme court addressed the authorization defense and stated that this defense "is derived from the right of the employer to authorize medical care under section 85.27, and generally means an employer who is providing reasonable medical care to an employee is not responsible to pay for unauthorized medical care." The defense, however, is available only where the employer does not contest compensability. In this case the employer disputed the existence of a permanent disability and had taken the position that further treatment was neither reasonable nor necessary. The defense has no application here. The employer was not providing reasonable care, but had, in fact, ceased providing any care.
Iowa Code section 85.27 and the authorization defense are designed to avoid duplicative parallel care. In that situation, the defense makes sense as the agency has made a determination that the care is adequate. Where, however, the employer has ceased to provide care alleging that no further care is necessary, the defense has no application. R.R. Donnelly, 970 N.W.2d at 198 ("Once an employer takes the position in response to a claim for alternate medical care that the care sought is for a noncompensatory injury, the employer cannot assert an authorization defense in response to a subsequent claim by the employee for the expenses of the alternate medical care."); see also Lasiter v. Indus. Comm'n of Arizona, 839 P.2d 1101, 1109 (Ariz. 1992); McCoy v. Indus. Accident Comm'n, 410 P.2d 362, 367 (Cal. 1966). At that point, both the employer and the employee proceed at their peril. The employer loses the right to control care and the employee bears the burden of proving that the authorized care was unreasonable. Trade Professionals, Inc. v. Shriver, 961 N.W.2d 119, 123-24 (Iowa 2003); Pirelli-Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433, 436 (Iowa 1997).
By challenging Bell Brothers' choice of treatment and seeking alternate care, Gwinn assumed the burden of proving the authorized care was unreasonable. Pirelli-Armstrong, 562 N.W.2d at 436. In this case, the commissioner found that the employer had denied compensability for a permanent injury and had ceased to provide further treatment. The commissioner further determined that a tear of the Achilles tendon did exist that the employer's doctor had missed. The commissioner also found that the unauthorized treatment "has resulted in initial relief to the claimant and it is found that his treatment and surgery were beneficial." Under the facts of this case, the employee met his burden of proof.
We conclude there was substantial evidence to support the commissioner's decision ordering Bell Brothers to pay for Dr. Pichler's medical services and that the decision was not based on an erroneous interpretation of the law.
VI. Authorized Treating Physician
Bell Brothers next argues that the agency should not have designated Dr. Pichler as Gwinn's authorized treating physician. The commissioner noted that since Dr. Galles continued to deny Gwinn had a torn Achilles tendon, it would not be productive to further Gwinn's treatment with Dr. Galles. Because Dr. Pichler ultimately discovered the torn Achilles tendon, and devised a treatment plan, we conclude there is substantial evidence to support the commissioner's decision to designate Dr. Pichler as the authorized treating physician for Gwinn.
VII. Conclusion
After considering all issues raised on appeal, we affirm the decision by the Workers' Compensation Commissioner.
AFFIRMED.
MAHAN, Zimmer, Miller, Vaitheswaran and Baker, JJ., concur. Huitink, Vogel and Eisenhauer concur in part and dissent in part. Sackett, C.J., takes no part.
I respectfully dissent as to the majority's resolution of whether the employer should be responsible to pay for the unauthorized medical care of Dr. Pichler. Although this is an appeal from the arbitration decision, the case was preceded by an alternate medical care ruling favorable to the employer. It is that ruling on December 30, 2004, and the events that occurred prior to the arbitration hearing on January 25, 2005, that convince me the arbitration ruling should be in part reversed.
First, I would conclude that because the treatment and surgery performed by Dr. Pichler was in direct disregard of a portion of the deputy's alternate medical care decision, the employer should not be held to pay for the unauthorized care. Moreover, while the majority correctly notes that the employer's ability to control an employee's care depends on whether the employer has admitted liability, see, e.g., Winnebago Indus., 727 N.W.2d at 575, I believe Bell Brothers did admit liability here. Therefore, it should be afforded the protection of the "authorization defense," under which it also may not be held liable to pay for the unauthorized medical care provided by Dr. Pichler.
As noted, this case involves an alternate medical care hearing. Iowa Code section 85.27(4) provides for this mechanism by which an aggrieved employee may seek alternate medical care beyond what has been authorized and offered by the employer:
If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee 2 cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of necessity therefor, allow and order other care.
Looking to the instant case, after the hearing on the alternate medical care proceeding, the deputy reviewed the extensive history of treatment and testing done for Gwinn. He then denied Gwinn's claim for additional care, stating:
Based upon the above record, claimant has failed to prove defendants have not offered prompt care reasonably suited to his injury. Defendants have offered claimant the opportunity to be reevaluated by Dr. Galles. It is assumed that Dr. Galles will be provided the most recent records from Dr. Pichler for that evaluation.
. . . .
Claimant's petition for alternate care is denied. If after Dr. Galles' evaluation, claimant is still unsatisfied with the care provided and recommended by Dr. Galles, claimant has the option of filing a subsequent alternate care petition.
This decision was rendered on December 30, 2004. On January 11, 2005, Gwinn was again seen by Dr. Galles. Following that evaluation, Dr. Galles recommended that Gwinn continue to undergo physical therapy, but he did not believe he could improve Gwinn's function through surgery. One day after his visit with Dr. Galles, Gwinn again saw Dr. Pichler in an unauthorized visit. Dr. Pichler gave an opinion "strongly disagreeing" with Dr. Galles, and recommending surgical correction. Seven days later, on January 19, unbeknownst to Bell Brothers, and contrary to the alternate care hearing order, Gwinn underwent surgery on his Achilles tendon.
Per the agency's alternate medical care decision, when Gwinn was not satisfied with Dr. Galles' recommendations and determination that surgery was not advised, Gwinn had the option to file a second alternate medical care petition. He did not do this. Rather, side-stepping the directive of the alternate 3 medical care decision, Gwinn went back to Dr. Pichler. Bell Brothers was given no notice that Gwinn had further consulted Dr. Pichler and intended to undergo surgery. Had Gwinn followed the agency's alternate medical care ruling, he could have presented the hearing officer with Dr. Pichler's subsequent surgical recommendation and Bell Brothers would have been able to consent to or resist further treatment. Instead, Bell Brothers was blindsided by Gwinn's decision to go ahead with unauthorized surgery. Because Gwinn failed to follow the agency's order to pursue a second alternate medical care hearing following his apparent dissatisfaction with Dr. Galles' recommendation, I would deny his ability to recover payment from Bell Brothers for that surgery.
In addition, I believe Bell Brothers had the right to rely on the alternate medical care decision, as the status quo, pending notification by Gwinn that he intended to seek out further medical treatment. Instead, Bell Brothers came to the arbitration hearing completely unaware that Gwinn had gone ahead with surgery. The authorization defense should have shielded the employer from liability for Dr. Pichler's unauthorized treatment and surgery. In R.R. Donnelly Sons v. Barnett, 970 N.W.2d 190 (Iowa 2003), our supreme court addressed the authorization defense. It stated that, in short, this defense "is derived from the right of the employer to authorize medical care under section 85.27, and generally means an employer who is providing reasonable medical care to an employee is not responsible to pay for unauthorized medical care." R.R. Donnelly, 970 N.W.2d at 196.
Depending on the nature of the ruling on such a procedural mechanism, an employer may be entitled to a defense against any future attempts by the 4 employee to seek payment for the care. Our supreme court has, however, recognized the "limited" scope of the authorization defense, stating "it applies to cases when the commissioner has denied a petition for alternate care on its merits." Id. at 197.
The court in R.R. Donnelly
emphasize[d] that the commissioner's ability to decide the merits of a section 85.27(4) alternate medical care claim is limited to situations where the compensability of an injury is conceded, but the reasonableness of a particular course of treatment for the compensable injury is disputed.
Id. That is precisely the case here. By virtue of the fact the deputy ruled on the merits of the alternate medical care claim, we can conclude that compensability was indeed conceded. Indeed, the alternate medical care decision contains the following fact finding: "Defendants admit liability for an injury to claimant occurring on or about April 25, 2001."
Had the deputy been confronted with a situation in which the employer disputed liability or compensability, it would have been required to dismiss the alternate medical care petition without reaching the merits.
Moreover, beyond the findings made by the deputy in the alternate medical care ruling, I would conclude substantial evidence supports that the employer here did not dispute a causal connection between the employment and the work injury. In fact, there was an immediate acceptance of compensability. The employer merely disputed the existence of a permanent disability. Only after providing years of care in the form of various treatments, tests, and therapy, did the employer essentially state that further treatment was neither reasonable nor 5 necessary. The agency agreed at the alternate medical care hearing. Because there was such a concession of liability and some degree of compensability, the employer retained the authority to question the propriety of a particular course of care, and still be afforded the authorization defense. The concomitant of that finding is that the employer should not be liable for paying for any future unauthorized treatment.
Even the deputy at the arbitration decision declined to rule as to permanency as the surgery was preformed only six days prior to that hearing.
In this case, Gwinn chose to proceed contrary to the alternate medical care ruling, depriving Bell Brothers of the opportunity to review, consent to, or object to Dr. Pichler's pre-surgical recommendations. I would therefore conclude Bell Brothers was afforded the protection of the authorization defense following the alternate medical care hearing's favorable ruling and should not be held liable to pay for the unauthorized treatment.