January 11, 2017
DONALD A. WESTLING, Petitioner-Appellant,
HORMEL FOODS CORPORATION, Respondent-Appellee.
from the Iowa District Court for Polk County, Carla T.
workers' compensation claimant seeks to overturn the
commissioner's denial of alternative care under Iowa Code
section 85.27(4) (2011). AFFIRMED.
S. Soldat of Soldat & Parrish-Sams, P.L.C., West Des
Moines, for appellant.
Valerie A. Landis of Hopkins & Huebner, P.C., Des Moines,
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
Donald Westling contends the workers' compensation
commissioner wrongly denied his application for alternate
medical care under Iowa Code section 85.27(4) (2011).
Westling's application sought treatment for his right
knee, which he injured in 1993 and 1996 while working at
Hormel Foods Corporation. After several surgeries, including
a total knee replacement in 2005, Westling continued to
experience pain in his knee and received authorization from
Hormel to see orthopedic surgeon Michael Crane. After
examining Westling's knee, Dr. Crane recommended Westling
wait until he had "more trouble" before considering
revision surgery. Westling asserts Dr. Crane's August 9,
2011 "diagnostic examination" did not constitute
"treatment" under section 85.27(4).
commissioner decided Westling did not meet his burden to show
he was entitled to alternate medical care. In the
commissioner's view, reasonable care included services
"necessary to diagnose the condition" and Westling
did not show the services provided by Dr. Crane were
unreasonable. The district court ruled the commissioner
identified sufficient facts to justify her denial of
alternate care. Because the record amply supports the
commissioner's conclusion Westling did not show the
authorized care was unreasonable, we affirm.
Facts and Prior Proceedings
worked for Hormel for thirty years, starting in 1976. During
that time, Westling twice injured his right knee at the
meatpacking plant and received workers' compensation
payments for those injuries, including ongoing medical
benefits. Westling underwent several surgeries on his knee,
including one in 1998 performed by Dr. Crane. Westling
suffered deep venous thrombosis (DVT) as a result of that
surgery. After those complications, Westling opted to be seen
by Dr. Adrian Wolbrink, who performed a total knee
replacement in 2005. Westling retired from Hormel the
following year and moved to Milford, Iowa.
continued problems with his knee, Westling went to his
Milford family-care provider in June 2011, and he was
referred to Dr. Gregory Alvine with Core Orthopedics in Sioux
Falls, South Dakota. Hormel instead approved an appointment
with Dr. Crane in Mason City. On October 19, 2011, Dr. Crane
performed a clinical examination of Westling's knee, as
well as ordering and reviewing x-rays. Westling testified Dr.
Crane spent "probably ten minutes" talking to him
during the appointment.
Crane made the following notes regarding the appointment:
Donald Westling is seen today for evaluation of his right
total knee replacement done in 2005. Prior to that he had a
proximal tibial osteotomy in 1996-1997. He states the knee
hurts off and on. It feels like it will give out on occasion.
It clicks and makes noise. He is [sixty-two] years old.
Crane reported on the physical examination:
On examination of the knee he extends well to 0 degrees and
flexes to 100-105 degrees. Medial and lateral instability is
not a significant problem, but he does have some anterior
posterior instability. He also has a bit of an effusion I
believe. He has no evidence of redness to suggest an
infectious type process. The right leg also shows signs of
brawny edema. He has apparently had two blood clots on that
Crane also compared Westling's new x-rays to his previous
images: "His x-rays look pretty good, although there is
some lucency about the medial aspect of the tibial component.
This has not changed since 2006."
Crane offered the following impression and recommendations:
I would not suggest a revision at this point-with the lucency
medial there is a potential it could fracture . . . . With
his previous complications I would suggest he wait until he
has more trouble to consider revision . . . . He should be
seen in about [two] years with an x-ray.
expressed dissatisfaction with Dr. Crane's
recommendations and again requested a referral to Dr. Alvine,
which Hormel denied. Instead, Hormel had Dr. Crane's
recommendations reviewed by Dr. John Albright, a professor of
orthopedic surgery at the University of Iowa Hospitals and
Clinics. Dr. Albright concurred with Dr. Crane's
assessment and plan, writing:
I agree that Mr. Westling should follow with regular Xrays
done every year or two. I would not recommend any revision
surgery without any significant clinical or radiographic
evidence indicating further surgical intervention. In
addition, medical co-morbidities necessitating chronic
Coumadin therapy increase the risks associated with any
surgical procedure, especially a revision surgery, and should
be seriously considered in any surgical recommendation. This
is another reason to avoid further surgery as long as
October 2011, Westling filed an original petition with the
workers' compensation commissioner for alternate medical
care, specifically seeking a referral to Dr.
Alvine. At an administrative hearing in April
2012, Westling testified he wanted to see Dr. Alvine because
he was a knee specialist and Westling believed he would
provide "better care" than Dr. Crane. Westling said
the distance to the appointments was not a factor. Westling
acknowledged he had not previously filed any documents
indicating his dissatisfaction with the treatment provided by
Dr. Crane "because that was Hormel's primary doctor
they told me to go to." Westling testified he did not
know what to expect to receive from Dr. Alvine as far as
suggestions for further care.
deputy commissioner determined Westling had not met his
burden to prove the medical care provided by Hormel was
unreasonable or ineffective and denied Westling's
application for alternate medical care. The commissioner
affirmed the deputy's decision in April 2013. Westling
sought judicial review, and the district court noted the
commissioner's findings of fact were "not
extensive." The judicial review decision stated:
"It is unclear to the court how these findings of fact
are relevant to the issues of whether the authorized care was
(1) prompt, (2) reasonably suited to treat the injury, and
(3) without undue inconvenience to the claimant." The
district court remanded for the commissioner to set forth the
facts relied upon in determining Westling had failed to meet
his burden of proof on the alternate-medical-care issue.
February 2015, the commissioner filed a remand decision,
adding additional references to the evidence presented at the
April 2012 hearing. Westling again sought judicial review. On
January 31, 2016, the district court upheld the
commissioner's decision, concluding "the agency
acted as directed on remand and supplied sufficient facts to
justify its decision to deny alternate care benefits" to
Westling. Westling now appeals that judicial review order.
Scope and Standards of Review
Code chapter 17A governs judicial review of rulings from the
workers' compensation commissioner. Baker v.
Bridgestone/Firestone, 872 N.W.2d 672, 675 (Iowa 2015).
Our scope of review is for correction of errors at law.
See Oswald v. Bulkmatic Transp., No. 02-2043, 2003
WL 22461737, at *1 (Iowa Ct. App. Oct. 29, 2003). Both the
district court and our court act in an appellate capacity
when reviewing an agency decision. See Neal v. Annett
Holdings, Inc., 814 N.W.2d 512, 518 (Iowa 2012). If our
appellate assessment is the same as the district court, we
will affirm, and if not, we will reverse. See id.
particular standard of review from section 17A.19(10) that we
apply depends on the issues raised on appeal. See
Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 196
(Iowa 2010). Because those standards of review vary widely,
it is "essential for counsel to search for and pinpoint
the precise claim of error on appeal." Id.
(citation omitted). In his appellant's brief, Westling
fails to pinpoint the standard of review, instead listing
seven subsections-(c), (d), (f), (i), (j), (m), and (n).
Because Westling's argument mentions "substantial
evidence" three times and does not challenge or discuss
specific legal interpretations made by the commissioner, we
can only assume he is limiting his challenge to section
17A.19(10)(f). Where the appellant is alleging factual
error, we must determine if the commissioner's findings
are supported by substantial evidence. See Meyer v.
IBP, Inc., 710 N.W.2d 213, 219 (Iowa 2006) (explaining
question on appeal is not whether the evidence supports a
finding different from the factual finding made by the
commissioner but whether the evidence supports the finding
actually made); Mycogen Seeds v. Sands, 686 N.W.2d
457, 465 (Iowa 2004) (recognizing "factual
determinations in workers' compensation cases are clearly
vested by a provision of law in the discretion of the
agency" (citation omitted)). To the extent Westling is
challenging the commissioner's interpretation of the word
"treatment" and other terms in section 85.27(4),
our level of deference depends on whether the legislature
"clearly vested" the authority to interpret the
term "in the discretion of the agency." See
Burton v. Hilltop Care Ctr, 813 N.W.2d 250, 256 (Iowa
2012). Compare Iowa Code § 17A.19(10)(c),
with id. § 17A.19(10)(l). "If the
agency has not been clearly vested with the
authority to interpret a provision of law, " then we
must reverse if the agency's interpretation is erroneous.
Burton, 813 N.W.2d at 256. "If the agency
has been clearly vested with the authority to
interpret a statute, " then we may only disturb the
agency's interpretation if it is "irrational,
illogical, or wholly unjustifiable." Id.
(quoting 17A.19(10)(l)). Our supreme court has
declined to give deference to the commissioner's
interpretation of various provisions in chapter 85. See
Evenson v. Winnebago Indus., Inc., 881 N.W.2d 360, 369
(Iowa 2016) (collecting examples). We follow that same course
also disputes whether the commissioner's February 2015
remand decision complied with the district court's
instructions. The purpose of section 17A.16(1) is to
allow the reviewing court to determine when the commissioner
is making a determination of fact and when the commissioner
is engaging in the application or interpretation of law so
that reviewing courts may properly review the relevant
portion of the decision. See Dodd v. Fleetguard,
Inc., 759 N.W.2d 133, 137 (Iowa Ct. App. 2008). Our
supreme court has held the commissioner "need not
discuss every evidentiary fact and the basis for
[her] acceptance or rejection so long as the
commissioner's analytical process can be followed on
appeal." Bridgestone/Firestone v. Accordino,
561 N.W.2d 60, 62 (Iowa 1997).
medical care is governed by the following statute:
[T]he employer is obliged to furnish reasonable services and
supplies to treat an injured employee, and has the right to
choose the care . . . . The treatment must be offered
promptly and be reasonably suited to treat the injury without
undue inconvenience to the employee. If the employee has
reason to be dissatisfied with the care offered, the employee
should communicate the basis of such dissatisfaction to the
employer, . . . 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 the necessity therefor, allow and order
Iowa Code § 85.27(4).
this statute, the employer must provide medical treatment
that is (1) prompt, (2) reasonably suited to treat the
claimant's injury, and (3) without undue inconvenience to
the claimant. Good v. Tyson Foods, Inc., 756 N.W.2d
42, 45 (Iowa Ct. App. 2008). If the employer's offerings
do not meet these three criteria, the commissioner may order
alternate care. See R.R. Donnelly & Sons v.
Barnett, 670 N.W.2d 190, 195 (Iowa 2003).
challenging Hormel's choice of Dr. Crane as the treating
physician, Westling assumed the burden of proving the
authorized care with Dr. Crane was unreasonable. See Long
v. Roberts Dairy Co., 528 N.W.2d 122, 123 (Iowa 1995)
("Determining what care is reasonable under the statute
is a question of fact."). Westling's desire for care
by a different doctor is "not determinative" on the
issue of alternate care. Id. at 124. "[T]he
employer's obligation under the statute turns on the
question of reasonable necessity, not desirability."
appeal, Westling does not seriously allege he was entitled to
alternative care because his appointment with Dr. Crane was
not prompt or convenient. Instead, Westling maintains his
appointment with Dr. Crane "(in which no treatment
whatsoever was offered), did not and could not constitute
treatment, let alone reasonable or effective treatment per
section 85.27(4)." Westling contends: "On 8/19/11,
Dr. Crane did nothing to improve Westling's condition.
Ergo, the district court erred prejudicially by
affirming the acting commissioner's 2/11/15 remand
decision, and alternate care should be granted to Westling as
a matter of law."
disagree that as a matter of law a diagnostic
appointment-where the doctor takes a patient history,
performs a clinical examination, orders new x-rays and
compares those images to prior x-rays, and considers this
particular patient's previous complications before
recommending against revision surgery at the present time and
scheduling additional x-rays in two years-cannot be
considered treatment under section 85.27(4). The
employer's obligation under section 85.27(4) is to
"furnish reasonable services and supplies" to treat
the injured employee. Medical services include making a
diagnosis. See generally Baker, 872 N.W.2d at 678
("In promptly furnishing reasonable medical care to
injured employees under chapter 85, employers are empowered
to substitute their judgment for that of their injured
employees on the important question of which medical
professionals are best suited to diagnose and treat
work-related injuries." (emphasis added)).
test for the commissioner to order alternate care is whether
the care authorized by the employer was effective, that is,
reasonably suited to treat the claimant's injury.
Pirelli-Armstrong Tire Co. v. Reynolds, 562 N.W.2d
433, 437 (Iowa 1997). Care by a physician of the
claimant's choosing is appropriate after "the
physician selected by his employer has failed or refused to
give necessary treatment or has been unsuccessful in his
did not present evidence to the commissioner that the
wait-and-see approach advocated by Dr. Crane was
unreasonable. Westling offered no proof Dr. Crane refused to
give "necessary treatment." In fact, the
commissioner relied on Hormel's "second opinion
regarding the reasonableness of Dr. Crane's medical
treatment" in deciding "the treatment offered to
claimant was reasonable care." Like Dr. Crane, Dr.
Albright did not recommend further surgery based on the
current condition of the knee, instead recommending follow-up
x-rays every year or two. The commissioner also considered
Westling's testimony that he did not know whether
"he would consider surgery even if Dr. Alvine would
recommend additional surgical procedures, given
claimant's preexisting DVT condition."
commissioner identified the essential information in the
record supporting her rejection of Westling's request for
alternate care. We, like the district court, conclude the
commissioner's decision denying alternate care complied
with section 17A.16(1) and was supported by substantial
evidence. Therefore, we affirm the judicial review order.
 Westling later re-captioned his
petition as a review-reopening, but he still pursued the
 Iowa Code section 17A(10)
The court shall reverse, modify, or grant other
appropriate relief from agency action . . . if it determines
that substantial rights of the person seeking judicial relief
have been prejudiced because the agency action is . .
(f) Based upon a determination of fact clearly vested
by a provision of law in the discretion of the agency that is
not supported by substantial evidence in the record before
the court when that record is viewed as a whole.
 The legislature defined
"substantial evidence" as "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 §
 Westling's brief asserts:
Suffice it to say that in the district court's
1/31/16 second judicial review decision, . . . it neither
adhered to the law of the case or the rationale of the prior
district court decision, nor actually scrutinized whether the
acting commissioner complied with the 1/14/14 remand
instructions, section 17A.16(1) . . . . Instead, it
essentially utilized a substantial-evidence