Opinion
No. 3-403 / 02-1481
Filed November 17, 2003
Appeal from the Iowa District Court for Polk County, George W. Bergeson, Judge.
Employer appeals from alternate medical care decision. AFFIRMED.
David Jenkins of Bradshaw, Fowler, Proctor Fairgrave, P.C., Des Moines, for appellant.
Richard Schmidt of Berg, Rouse, Spaulding Schmidt, P.L.C., Des Moines, for appellee.
Heard by Vogel, P.J., and Mahan and Zimmer, JJ.
Pella Corporation (Pella) appeals from a district court decision on judicial review which affirmed a final agency alternate medical care decision in favor of its employee, Theresa Fogle. The agency decision determined Fogle's care should be transferred to a neurosurgeon, whom Fogle had seen at her own expense. Pella argues the agency decision must be reversed because it was not supported by substantial evidence. We affirm.
Background Facts and Proceedings. On August 7, 2000, Theresa Fogle sustained an injury at work that resulted in lower back pain and leg pain. She was seen the next day by Dr. Lloyd Thurston, the employer's authorized physician. After reviewing an MRI, Dr. Thurston referred Fogle to neurosurgeon Dr. David Boarini. Dr. Boarini examined Fogle, reviewed the MRI and a CT myelogram, and recommended an aggressive conservative treatment plan. He did not recommend surgery. Fogle was then referred to Dr. Donna Bahls, a physical medicine and rehabilitation specialist, who provided conservative, non-surgical care, including work restrictions, physical therapy, pain medications, and injections.
Fogle continued to experience pain and symptoms, and was convinced that her problem was surgical. In December 2000 she sought out, at her own expense, a medical opinion from University of Iowa neurosurgeon Dr. Ernest Found, Jr. After a physical examination and review of the previous MRI and CT meylogram, Dr. Found determined no surgical intervention was indicated, and recommended that Fogle continue with rehabilitation.
Fogle was placed at maximum medical improvement in February 2001 by Dr. Bahls, and was given a five percent whole person impairment. She continued to have low back pain, and Dr. Thurston recommended a referral. It was not authorized.
In April 2001 Fogle saw neurosurgeon Dr. Douglas Koontz at her own expense. After reviewing a lumbar discogram performed by Dr. Mohammad Iqbal, whom Fogle also saw at her own expense, Dr. Koontz recommended surgery. He diagnosed Fogle with lumbar discogenic disease at L4-5 and L4-S1, and symptomatic disc herniations at L4-5 and L5-S1. He noted that all modes of conservative treatment had been tried and failed, and opined "in order to try and help with her pain, she needs" surgical treatment, which "is the typical treatment for lumbar discogenic disease." Pella would not authorize the treatment, and in August 2001 Fogle filed a petition for alternative medical care with the Iowa Workers' Compensation Commissioner.
Written opinions and diagnostic notes were submitted from the relevant physicians. Dr. Boarini did not recommend surgery. While he stated Dr. Koontz's recommendation could be considered as a last resort, he opined that the chances of success with surgery were very low. Dr. Bahls also did not believe the condition was surgical, and recommended work restrictions and permanent pain medication. After considering records from Drs. Koontz and Found, Dr. Thurston stated he felt comfortable "with continuing [Fogle] with conservative treatment basically medications and work restrictions."
Fogle did not find the pain medication adequate relief, and testified that some of the treatments increased her pain and "made things worse." She stated that from the date of her injury she continued to have problems, and that "things have just went downhill and continually gotten worse." There was no medical testimony, however, that any of the authorized treatment worsened Fogle's medical condition. To the contrary, Dr. Thurston stated that he knew "of no instance of [Fogle's] care making her condition worse."
Relying on Fogle's testimony and the medical opinion of Dr. Koontz, a deputy workers' compensation commissioner concluded that the care currently being offered was not reasonably suited to treat Fogle's injury, and ordered that Fogle's medial care be transferred to Dr. Koontz. Pella filed a petition for judicial review, and the district court upheld the agency's decision. While noting that Drs. Boarini, Bahls and Thurston had provided Fogle appropriate medical care, the court concluded Fogle had presented substantial evidence that the authorized care was not reasonably suited to treat her injury. Pella appeals.
The deputy workers' compensation commissioner was delegated the authority to issue the final agency decision on Fogle's alternate medical care application. See Iowa Code § 17A.15(1) (2001).
Scope of Review . Our review is limited to the correction of errors at law. Aluminum Co. of America v. Musal, 622 N.W.2d 476, 478 (Iowa 2001). The agency's decision is upheld unless it prejudiced Pella's substantial rights. Iowa Code § 17A.19(10) (2001). Invalidity of agency action can be demonstrated in a number of ways, including proof the action was legally erroneous, arbitrary or capricious, or unsupported by substantial evidence in the record when that record is viewed as a whole. Id. Pella bears the burden of demonstrating both the invalidity of the agency's action, and resulting prejudice. Id.; § 17A.19(8)(a).
Discussion. If Fogle established that the authorized medical care provided by Pella was not offered promptly, was not reasonably suited to treat her injury, or was unduly inconvenient to her, then the agency was authorized to order alternate medical care. See Iowa Code § 85.27(4); R.R. Donnelly Sons v. Barnett, ___ N.W.2d ___ (2003). The agency apparently concluded that Pella had failed in all three regards. However, we agree with Pella that the record did not contain substantial evidence that the authorized treatment was not provided promptly or was unduly inconvenient. Fogle was almost immediately seen by Dr. Thurston, and was promptly referred to specialists. She was not forced to travel great distances to obtain this care, nor is there any indication that she was otherwise unduly inconvenienced by the authorized care.
In concluding that Pella had not provided reasonable care, the deputy determined that "the care [Fogle] needs has not been promptly offered," and that care which had been offered "has not been offered without undue inconvenience to claimant who has been forced to pay three other doctors at her own expense in order to obtain reasonable medical care . . . "
These conclusions are not fatal to the agency's decision, however, if the record contains substantial evidence that the authorized treatment was not reasonably suited to treat Fogle's injury. The standard to be applied in such cases was discussed in Pirelli-Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433, 437 (Iowa 1997):
The burden is on the employee to show that the care chosen by the employer is not reasonably suited to treat the injury. Reasonableness, of course, is a fact question.
. . .
[W]hen 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.
(citations omitted).
In assessing the adequacy of the authorized care, we agree with Pella that Fogle's testimony about a general lack of improvement, increased pain, and "things . . . getting worse" does not constitute substantial evidence that treatment provided by Drs. Thurston and Bahls actually caused Fogle's medical condition to deteriorate. Nevertheless, the testimony of Fogle and the opinion of Dr. Koontz, supported by the testing of Dr. Iqbal, provides substantial evidence that the conservative treatment had not been effective to treat Fogle's condition, and that surgery would offer superior treatment and pain management. See Sherman v. Pella Corp.,576 N.W.2d 312, 321 (Iowa 1998) (noting agency may accept or reject medical opinion in whole or in part, and as fact finder determines weight to be afforded opinion, given accuracy of the facts relied upon and other surrounding circumstances); Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 257 (Iowa 1996) ("Lay witness testimony is both relevant and material upon the cause and extent of injury."). We therefore affirm the agency's decision to award alternate medical care.
Pella further argues that the agency decision contains "erroneous and inflammatory findings and conclusions . . . so wholly unreasonable and unsupported by evidence" as to require reversal of the agency's decision. We agree that some of the agency's findings and conclusions are unsupported by the record and, on occasion, appear to be unwarranted. We have already noted the agency's findings that the authorized medical care was unduly inconvenient, was not provided promptly, and caused Fogle's medical condition to deteriorate or worsen are not supported by substantial evidence in the record. In addition, the agency's assertion that Fogle would be entitled to "additional compensation" should the authorized care result in harm to Fogle, and similar comments implicating future actions related Fogle's injury, appear to be both unsupported and unnecessary to the limited question before the agency. Nevertheless, none of these questionable findings and conclusions are determinative of the issue of whether alternate medical care could be authorized.