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Thomas Millenkamp v. Millenkamp Cattle

April 10, 2013

THOMAS MILLENKAMP, PETITIONER-APPELLANT,
v.
MILLENKAMP CATTLE, INC. AND NATIONWIDE MUTUAL INS. CO. D/B/A ALLIED, RESPONDENTS-APPELLEES.



Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.

The opinion of the court was delivered by: Mullins, J.

Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

Thomas Millenkamp appeals the district court's judicial review decision, which affirmed the agency's denial of Millenkamp's petition for alternate medical care. Millenkamp asserts the agency and the district court erred in (1) concluding the employer has the absolute right to change his medical care, (2) failing to apply agency precedent regarding his employer's ability to change his medical care, (3) failing to properly explain why it did not follow the agency precedent, (4) denying him due process by failing to follow agency precedent, (5) failing to require the employer to affirmatively monitor his medical care, and (6) concluding that the employer did not interfere with or abandon his medical care. We affirm the district court's decision, denying Millenkamp the alternate medical care he requested.

I. BACKGROUND FACTS AND PROCEEDINGS.

Millenkamp suffered a work-related traumatic brain injury in February 2001. Millenkamp Cattle, Inc. and Nationwide Mutual Insurance Co. (the employer) accepted liability following the agency's ruling in a contested case proceeding. Millenkamp was being treated by Dr. Sterrett, a neurologist, for his injury until Dr. Sterrett retired sometime in 2007 or 2008. The employer was not informed by Dr. Sterrett or Millenkamp of Dr. Sterrett's retirement. Following Dr. Sterrett's retirement, Millenkamp continued to receive the same medication, though the prescription was written by Dr. Compton, his primary care physician, who was also authorized by the employer to provide a prescription for Millenkamp's work-related high blood pressure. When the neurologic medication was no longer efficacious, Millenkamp asked Dr. Compton to refer him to Dr. Neiman, another neurologist Millenkamp's wife had researched and selected. Dr. Compton complied with the request in August of 2008.

The employer paid for the initial prescription written by Dr. Neiman, and then advised Millenkamp that Dr. Neiman was not an authorized treating physician and future neurologic care would be handled by Dr. Rizzo, the employer's liability expert at the contested case hearing. Millenkamp objected to the designation of Dr. Rizzo, and the employer agreed to designate Dr. Young instead.

Millenkamp filed a petition for alternate medical care with the workers' compensation commission seeking to have Dr. Neiman designated as the authorized treating physician, rather than Dr. Young. Following a phone hearing, Deputy McElderry denied the petition, finding Millenkamp did not meet his burden of proving the authorized care was not effective in treating his injury. Deputy McElderry found, "The choice of a board certified neurologist that is relatively close to the claimant's residence appears very reasonable. The employer is permitted to choose the care provided, and changing authorized physicians (particularly where mandated by a physician's retirement) does not itself establish unreasonableness." Millenkamp sought reconsideration of this decision, which was denied, and ultimately, he filed a petition for judicial review.

Meanwhile, Millenkamp filed a second petition for alternate medical care approximately a month after the decision on the first petition, again challenging the employer's selected neurologist. Dr. Young had refused to treat Millenkamp, so the employer authorized treatment with Dr. Cullen, another board certified neurologist. Deputy Pohlman rendered the decision for the agency on the second petition. He stated in his decision that he took notice of the prior alternate medical care proceeding. He found that the care provided by Dr. Neiman had been helpful to Millenkamp's condition, and "given the past conduct, it is unreasonable and unduly inconvenient for claimant to see [Dr. Cullen] given that Dr. Neiman is available, willing to treat claimant, and has already provided some care that has been effective."

The employer filed a petition for judicial review of Deputy Pohlman's decision. While that decision was on further review, it was discovered that Deputy McElderry's hearing was not properly recorded. Because Deputy Pohlman stated he took notice of Deputy McElderry's proceeding and that proceeding did not exist, the district court remanded both alternate medical care decisions back to the agency for a new hearing. Millenkamp dismissed his first alternate medical care petition without prejudice following the remand, so only the second alternate medical care decision was subject to rehearing in November of 2010.

Deputy Elliot issued his ruling on remand on November 16, 2010, finding the evidence did not support Millenkamp's claim that the employer abandoned his care. He also found that the evidence did not show the employer was trying to "avoid treatment recommendations of an authorized doctor," or "interfere with the treatment recommendations of Dr. Neiman." Deputy Elliot found the employer was simply exercising its statutory right to select care after the retirement of Dr. Sterrett, and even if it assumed Dr. Neiman was an authorized treating doctor by virtue of Dr. Compton's referral, the employer "still [has] the right to change care by changing doctors. A referral to a doctor is not a lifetime appointment." Deputy Elliot concluded the employer has offered care with a board certified neurologist and the evidence showed the employer had provided reasonable care.

Millenkamp again filed a petition for judicial review. The district court upheld the agency's ruling, finding

The record is devoid of any evidence that Dr. Cullen would not provide reasonable treatment for [Millenkamp's] injuries. [Millenkamp] admitted that he does not trust Dr. Cullen solely based on [the employer's] approval of him. The court finds that there is substantial evidence in the record to support the deputy commissioner's conclusion that [the employer] has offered reasonable care.

The district court found the commissioner's decision was not arbitrary based on its failure to follow the agency precedent: "The fact that [the deputy] did not rely on the precedent [Millenkamp] would prefer does not render his decision arbitrary." Finally, the district court rejected Millenkamp's claim that the employer abandoned his care, stating, "Based on [the employer's] prompt response once notified of Dr. Sterrett's retirement and its payments for [Millenkamp's] care, the Court finds that a neutral and reasonable mind could ...


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