from the Iowa District Court for Muscatine County, John
workers' compensation claimant challenges the
commissioner's denial of healing period benefits under
Iowa Code section 85.34(1). AFFIRMED.
Anthony J. Bribriesco, Andrew W. Bribriesco, and William J.
Bribriesco of Bribriesco Law Firm, Bettendorf, for appellant.
Valerie A. Landis of Hopkins & Huebner, P.C., Des Moines,
D. Neifert of Neifert, Byrne & Ozga, P.C., West Des
Moines, for amicus curiae Iowa Association for Justice
Workers' Compensation Core Group.
G. Koopmans (until withdrawal) and Joseph A. Quinn, Nyemaster
Goode, P.C., Des Moines, for amicus curiae Iowa Association
of Business and Industry, the Iowa Insurance Institute, the
Iowa Defense Counsel Association, and the Iowa Self-Insurers
Kelly Brewer-Strong contends the workers' compensation
commissioner wrongly denied her healing period benefits under
Iowa Code section 85.34(1) (2016). Brewer-Strong filed a
petition seeking workers' compensation benefits after
developing bilateral carpal tunnel injuries allegedly arising
out of and in the course of her employment with HNI
Corporation (HNI). HNI originally denied liability for the
claimed injuries. Brewer-Strong filed a petition for
alternate medical care that was dismissed on procedural
grounds because HNI contested liability for the injury. A
physician chosen by HNI examined Brewer-Strong, and the
physician confirmed that the claimed injuries were
work-related. HNI subsequently amended its answer to admit
liability and authorized Brewer-Strong to undergo medical
care with its chosen medical providers. However,
Brewer-Strong sought medical treatment from a different,
unauthorized physician who proceeded to perform two surgeries
on Brewer-Strong. HNI refused to pay Brewer-Strong healing
period benefits for the time she was recovering from the
workers' compensation commissioner decided Brewer-Strong
was not entitled to healing period benefits. Specifically,
the commissioner found that HNI provided a valid
authorization defense, and Brewer-Strong did not meet her
burden to prove that her unauthorized care resulted in a more
favorable outcome than the care she would have received from
the authorized physician. On judicial review, the district
court affirmed this decision on the same grounds.
Brewer-Strong appealed, and we retained the appeal. For the
reasons set forth below, we affirm the decision of the
Background Facts and Proceedings.
Brewer-Strong became an HNI employee in 2007. Her position
required Brewer-Strong to use her left upper extremity to
move fabric from the left to right sides of her body over 700
times per day. She would also carry equipment weighing around
140 pounds and, at times, lift this equipment on to a shelf
that was located above her shoulder level. Due to this work,
Brewer-Strong injured her left shoulder prior to the injuries
involved in this case.
December 5, 2011, HNI authorized Dr. Tina Stec, an
occupational physician, to treat Brewer-Strong for a new
injury that is the subject of this case. HNI had previously
authorized Dr. Stec to treat Brewer-Strong for her left
shoulder injury. Dr. Stec reexamined the left shoulder and
examined Brewer-Strong for her complaints of numbness in the
left arm. Due to her symptoms, Dr. Stec ordered a nerve
test-an EMG/NCV-for both of her arms. On January 26, 2012,
the test results revealed Brewer-Strong had mild bilateral
carpal tunnel syndrome. Dr. Stec subsequently opted to
provide Brewer-Strong with a conservative treatment and gave
her bilateral rigid wrist braces to wear at night. Dr. Stec
did not refer Brewer-Strong for any further treatment or
evaluation for the bilateral carpal tunnel. In a note she
wrote on January 30, Dr. Stec noted the bilateral carpal
tunnel was unrelated to her prior left shoulder injury, but
she wrote that it could "potentially [be] work related
due to forceful gripping at work."
about June 7, Brewer-Strong served her original notice and
petition on HNI. In her petition, she pled that she sustained
cumulative, bilateral arm injuries that arose out of and in
the course of her employment with HNI commencing on January
26, 2012. She also requested workers' compensation
benefits, including medical benefits, pursuant to Iowa Code
section 85.27. HNI answered on June 20 denying liability for
the bilateral arm injuries. HNI subsequently solicited and
received an opinion letter from Dr. Stec which stated,
"I do believe carpal tunnel can be/is related to her
work activities." HNI did not believe this opinion
letter served as a definitive assertion that
Brewer-Strong's employment at HNI caused her bilateral
carpal tunnel. Brewer-Strong then again requested medical
care to treat her bilateral arm injuries, asserting that Dr.
Stec's opinion letter confirmed that her bilateral carpal
tunnel was work-related. On August 30, HNI declined this
request and again denied liability, asserting that Dr.
Stec's opinion letter did not definitively establish that
the bilateral carpal tunnel injury sustained by Brewer-Strong
September 4, Brewer-Strong filed a petition for alternate
medical care asking the workers' compensation
commissioner to issue a ruling on medical care for her injury
and claiming an "abandonment of care" by HNI. HNI
answered and again denied liability for the bilateral carpal
tunnel. As a result, on September 10, the deputy workers'
compensation commissioner dismissed the petition for
alternate medical care. In issuing its order of dismissal on
alternate medical care, the deputy commissioner stated,
"[I]f claimant seeks to recover the charges incurred in
obtaining the care for which defendants deny liability,
defendants are barred from asserting lack of authorization as
a defense for those charges."
this order of dismissal, Brewer-Strong did not immediately
obtain any further medical treatment. However, HNI continued
to investigate the claimed injury. HNI arranged for
Brewer-Strong to be seen by Dr. Brian Adams at the University
of Iowa Hospitals and Clinics for an evaluation of her
injury. HNI also sought an opinion from Dr. Adams on whether
the injuries suffered by Brewer-Strong were work-related and
whether the injury required subsequent medical treatment.
Brewer-Strong was evaluated by Dr. Adams on October 22. Dr.
Adams diagnosed her with bilateral carpal tunnel syndrome,
mild cubital tunnel syndrome, and trigger finger. In his
evaluation, Dr. Adams opined that the bilateral carpal tunnel
syndrome "is substantially aggravated by her work
activities or caused by her work activities and therefore a
work-related disorder." Likewise, he noted the mild
cubital tunnel syndrome "is most likely substantially
aggravated by her work activities and therefore a
work-related condition." Nonetheless, Dr. Adams found
that none of the conditions required further examination or
surgical treatment. Dr. Adams recommended that she continue
using her wrist splints, modify her activity, and engage in
receiving this opinion from Dr. Adams, HNI amended its answer
on November 8 and admitted Brewer-Strong sustained her
bilateral carpal tunnel syndrome in the course of her
employment with HNI on January 26, 2012. Between November 8,
2012 and January 15, 2013, Brewer-Strong sought no medical
care for her bilateral upper extremity complaints. On January
15, 2013, Brewer-Strong was seen and examined by Dr. Kreiter.
In his examination, Dr. Kreiter noted that her complaints had
worsened since her evaluation with Dr. Adams. Dr. Kreiter
recommended Brewer-Strong undergo another EMG/NCV test, and
he suggested surgery. Upon receipt of Dr. Kreiter's
report, HNI arranged for Brewer-Strong to return to Dr. Adams
for another evaluation to determine the appropriate course of
medical care. HNI advised Brewer-Strong of these arrangements
on March 12. HNI also made clear that Dr. Adams was the
authorized medical provider to provide Brewer-Strong with the
medical care required to treat her bilateral upper extremity
complaints. However, Brewer-Strong refused to attend any
appointments with Dr. Adams. She testified at her hearing
that her symptoms had significantly worsened since her
October 2012 evaluation. She testified she did not know
whether Dr. Adams would have suggested surgery or a more
conservative course of treatment if she attended the
scheduled April 2013 appointment.
was deposed on April 16. It was through this deposition that
HNI discovered that Brewer-Strong planned to seek medical
care for her bilateral upper extremities from Dr. Thomas
VonGillern. As of the deposition date, Brewer-Strong had not
yet set up an appointment with Dr. VonGillern or received any
treatment from him. Brewer-Strong also asserted her
opposition to returning to Dr. Adams for treatment, calling
Dr. Adams a "high educated idiot" and proclaiming
that she disliked him because he did not speak to her in
layman's terms. During the deposition, HNI discovered
that Brewer-Strong had also sought medical treatment from Dr.
Atwell on March 25. As a result of his examination, Dr.
Atwell agreed with Dr. Adams' diagnosis and did not think
surgery was necessary to treat her injuries. Brewer-Strong
subsequently opted not to seek further medical treatment from
April 22, HNI again advised Brewer-Strong that Dr. Adams was
the authorized physician for her care. It also reiterated
that it would not cover the costs of her medical expenses and
weekly benefits if she was treated by Dr. VonGillern since he
was not the authorized physician. At that time, there was no
doubt that Brewer-Strong knew that HNI had accepted liability
for her bilateral upper extremity claim. HNI also filed a
motion to compel examination on April 22, seeking to have Dr.
Adams conduct another evaluation of Brewer-Strong. The
commissioner granted this motion on April 25, ordering
Brewer-Strong to attend a second evaluation with Dr. Adams.
However, this second evaluation was never scheduled with Dr.
Adams. Instead, Brewer-Strong decided to proceed with
treatment from Dr. VonGillern. On the same day that the
commissioner granted the motion to compel examination,
Brewer-Strong filed her second alternate medical care
petition. In this petition, she sought an order for HNI to
authorize another EMG/NVC nerve test that doctors could use
to determine her appropriate medical treatment. In its
response, HNI again admitted liability for the bilateral
upper extremity injury consistent with its November 2012
6, Brewer-Strong dismissed her petition for alternate medical
care before any hearing was held on the merits. That same
day, HNI learned Brewer-Strong planned to undergo surgeries
with Dr. VonGillern for her bilateral upper extremity issues.
HNI discovered this when she requested a leave of absence due
to the planned surgeries. Before the first scheduled surgery,
HNI again advised Brewer-Strong that Dr. Adams was the
authorized physician to treat her bilateral upper extremity
injury. HNI also advised her that she might not receive
short-term disability benefits or medical expense payments
through her health insurance if she continued with her
unauthorized care through Dr. VonGillern since HNI had
accepted liability for her work-related injury. On May 7, HNI
filed its own petition for alternate medical care with the
commissioner to voice its concern about Brewer-Strong's
continued treatment with Dr. VonGillern and the upcoming
surgeries. The deputy commissioner dismissed the petition
finding it was not allowed under Iowa Code section 85.27(4).
The deputy commissioner's order of dismissal explained
that a workers' compensation claimant has three options
when the employer accepts liability for the worker's
injury: accept the care offered and authorized by the
employer, file a petition for alternate medical care, or
pursue unauthorized medical care at her own expense. The
deputy commissioner also explained HNI "may elect to
assert an authorization defense should [Brewer-Strong] refuse
the treatment offered without an order of this agency
did not file any further alternate medical care petition that
would require HNI to pay for the medical care and treatment
provided by Dr. VonGillern, nor did she appeal the order of
dismissal. Brewer-Strong subsequently underwent surgery with
Dr. VonGillern on her upper right extremity on May 10, and on
her left upper extremity on June 10. Thus, Brewer-Strong was
off work from May 10 through July 21, 2013, creating a period
of possible entitlement to healing period benefits for this
time under Iowa Code section 85.34(1). HNI refused to pay
Brewer-Strong any healing period benefits during the time she
was off work based on these unauthorized surgeries. However,
Brewer-Strong did receive a total of $2990 in short-term
disability benefits. In its refusal to pay healing period
benefits, HNI reiterated that Dr. VonGillern was an
unauthorized physician to provide treatment to Brewer-Strong.
to the hearing on her claim for healing period benefits, Dr.
VonGillern was deposed. When asked whether his treatment of
Brewer-Strong provided a more favorable outcome than that
which would have been provided by Dr. Adams, Dr. VonGillern
answered, "I don't know that his would-his
procedures would have been any different." Similarly,
Dr. VonGillern explained that Dr. Adams likely would have
recommended surgery similar to what Dr. VonGillern had
performed if Dr. Adams had evaluated Brewer-Strong for a
second time in April 2013. Finally, Dr. VonGillern could not
say that his treatment of Brewer-Strong provided a more
favorable outcome than the possible treatment by Dr. Adams.
Dr. VonGillern estimated Brewer-Strong had a two percent
impairment rating of each upper extremity, though he could
not yet determine whether Brewer-Strong had reached maximum
medical improvement for her cumulative bilateral upper
extremity injury. Dr. VonGillern was the only physician to
testify about the course of treatment Dr. Adams might have
chosen had he reexamined and treated Brewer-Strong.
22, 2014, HNI issued a check to Brewer-Strong for permanent
partial disability benefits and accrued interest in the
amount of $4987.96. However, it refused to issue her a check
for healing period benefits for her time off work from May 10
through July 21, 2013, the time she was off work after the
unauthorized surgeries. A bifurcated arbitration hearing took
place on August 22. The issues before the deputy workers'
compensation commissioner were threefold: (1) whether
Brewer-Strong was entitled to healing period benefits, (2)
whether the healing period was the result of unauthorized
medical care, and (3) whether Brewer-Strong was entitled to
penalty benefits. Brewer-Strong testified that she still had
complaints about her bilateral upper extremities, but she did
not know if her symptoms were related to her January 26
injury. She also testified that she was unsure whether she
was satisfied with the results of the surgeries that Dr.
explained that because she was having some of the same
symptoms that she had prior to her surgeries with Dr.
VonGillern, she had arranged for an independent medical
examination with Dr. Milas in March. Dr. Milas suggested
Brewer-Strong undergo another round of electrodiagnostic
studies on her upper extremities and noted that she may also
need an MRI of the nerves to further assess her condition.
Moreover, while Brewer-Strong returned to work following her
surgeries, Dr. Milas believed that she would never be able to
return to work or find significant employment in the future.
Nothing in the evidence suggests Brewer-Strong pursued Dr.
Milas's course of action, and she testified at the
hearing that she did not know whether she would pursue
additional treatment. However, she testified that she decided
not to pursue the additional EMG/NCV testing that Dr.
VonGillern had suggested.
November 12, the deputy commissioner denied Brewer-Strong
healing period benefits, finding the medical care provided by
Dr. VonGillern was unauthorized under Iowa Code section
85.27. The deputy commissioner found HNI proved a valid
authorization defense. It found that Brewer-Strong had failed
to prove her entitlement to payment for the unauthorized
medical care and any healing period benefits stemming from
such care. Brewer-Strong filed an application for rehearing,
but the deputy commissioner affirmed its previous decision to
deny Brewer-Strong healing period benefits. The deputy
commissioner also rejected a new argument forwarded by
Brewer-Strong that the authorization defense was prohibited
by the law-of-the-case doctrine, as well as her claim that
she met her burden of proof set forth in Bell Bros.
Heating & Air Conditioning v. Gwinn, 779 N.W.2d 193
(Iowa 2010). Brewer-Strong subsequently appealed to the Iowa
Worker's Compensation Commissioner, who affirmed the
arbitration decision of the deputy commissioner as a final
agency decision on intraagency appeal. Brewer-Strong then
filed an action for judicial review with the district court.
The district court affirmed the final decision of the
commissioner on the same grounds. Brewer-Strong filed a
timely notice of appeal, which we retained.
Standard of Review.
apply the standards set forth in Iowa Code chapter 17A in our
judicial review of agency decision-making to determine
whether our conclusion is the same as the district court.
Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 255-56
(Iowa 2012). "The district court may properly grant
relief if the agency action prejudiced the substantial rights
of the petitioner and if the agency action falls within one
of the criteria listed in section 17A.19(10)(a)
through (n)." Brakke v. Iowa Dep't of
Nat. Res., 897 N.W.2d 522, 530 (Iowa 2017). We affirm
the district court decision when we reach the same
conclusion. Westling v. Hormel Foods Corp., 810
N.W.2d 247, 251 (Iowa 2012).
defer to the agency's interpretation of a statute when
the legislature has clearly vested the agency with the
authority to interpret a statute." Id. Thus, in
cases where the legislature has clearly vested the
workers' compensation agency with the authority to
interpret a statute, we will only reverse the agency's
statutory interpretation if it is "irrational,
illogical, or wholly unjustifiable." Id.
(quoting Xenia Rural Water Dist. v. Vegors, 786
N.W.2d 250, 252 (Iowa 2010)). However, when the legislature
has not vested the agency with such authority, we review an
agency's interpretation of a statute for correction of
errors at law. Id.
we are reviewing the commissioner's interpretation of
Iowa Code section 85.34(1), which deals with healing period
benefits for work-related injuries. We have previously held
that Iowa Code chapter 85 "does not reveal any basis for
concluding that the legislature clearly vested the
workers' compensation commissioner with authority to
interpret the subsection at issue." Id.
Therefore, we review the commissioner's interpretation of
Iowa Code chapter 85 for correction of errors at law instead
of deferring to the agency's interpretation. Id.
Finally, "application of the workers' compensation
law to the facts as found by the Commissioner is clearly
vested in the Commissioner." Lakeside Casino v.
Blue, 743 N.W.2d 169, 173 (Iowa 2007). Thus, we
"may only disturb the agency's application of the
law to the facts of the particular case if that application
is 'irrational, illogical, or wholly unjustifiable.'
" Burton, 813 N.W.2d at 256 (quoting Iowa Code
presents three issues on appeal. First, she asserts that the
commissioner and the district court erred in finding that an
employer can regain control of an employee's medical care
after the employer initially denied liability for a work
injury. Second, she claims that the "more favorable
medical outcome" test set forth in Bell Bros.
establishes a burden of proof that is nearly impossible for
claimants to meet and should thus be abandoned or modified.
Finally, if we do not abandon or modify the test in Bell
Bros., 779 N.W.2d at 208, Brewer-Strong maintains that
the "more favorable medical outcome" test should
not apply to the issue of entitlement to healing period
benefits. Alternatively, should we decide the Bell
Bros. test is applicable to the issue of healing ...