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Brewer-Strong v. HNI Corp.

Supreme Court of Iowa

June 8, 2018

KELLY BREWER-STRONG, Appellant,
v.
HNI CORPORATION, Appellee.

          Appeal from the Iowa District Court for Muscatine County, John Telleen, Judge.

         A 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, for appellee.

          Jason D. Neifert of Neifert, Byrne & Ozga, P.C., West Des Moines, for amicus curiae Iowa Association for Justice Workers' Compensation Core Group.

          Ryan 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 Association.

          ZAGER, JUSTICE

         Claimant 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 unauthorized surgeries.

         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 district court.

         I. Background Facts and Proceedings.

         Kelly 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.

         On 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."

         On or 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 was work-related.

         On 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."

         Following 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 certain exercises.

         Upon 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.

         Brewer-Strong 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 Dr. Atwell.

         On 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 amended answer.

         On May 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 transferring care."

         Brewer-Strong 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.

         Prior 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.

         On May 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. VonGillern performed.

         Brewer-Strong 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.

         On 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.

         II. Standard of Review.

         We 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).

         "We 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.

         Here, 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 § 17A.19(10)(m)).

         III. Analysis.

         Brewer-Strong 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 ...


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