Pirelli-Armstrong Tire Co. v. Reynolds

Decision Date23 April 1997
Docket NumberNo. 96-471,PIRELLI-ARMSTRONG,96-471
Citation562 N.W.2d 433
PartiesTIRE COMPANY and Travelers Insurance Company, Appellants, v. Vern REYNOLDS, Appellee.
CourtIowa Supreme Court

Steven M. Nadel of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., Des Moines, for appellants.

Robert W. Pratt and Max Schott, Des Moines, for appellee.

Considered by McGIVERIN, C.J., and LARSON, NEUMAN, SNELL, and ANDREASEN, JJ.

LARSON, Justice.

This is an appeal by Pirelli-Armstrong Tire Company and its insurer (collectively Pirelli) from a district court judgment affirming an industrial commissioner's order approving a worker's application for alternative medical care under Iowa Code section 85.27 (1993). We affirm.

Vern Reynolds, a Pirelli employee, suffered a work-related knee injury in November 1993. Because of persistent symptoms stemming from the injury, Reynolds requested medical attention. Pirelli referred him to Dr. Breedlove, Pirelli's authorized physician, in February 1994. Dr. Breedlove recommended a peroneal nerve decompression, a procedure, which, the doctor explained, involves certain risks. Reynolds originally agreed to the surgery, but he later decided against it because of the risks.

Reynolds requested a second opinion, and Pirelli referred him to a Dr. Kirkland, who saw him for the first time in May 1994. Dr. Kirkland recommended foregoing surgery in favor of anti-inflammatories and a quadriceps-strengthening program. In June and July of 1994, Reynolds returned to Dr. Kirkland, complaining of continued pain. Dr. Kirkland again recommended against surgery and reaffirmed his original recommendation of the more conservative treatment.

During the following year, Reynolds' condition worsened. The original company doctor, Dr. Breedlove, examined him again in April of 1995. He noted that Reynolds suffered "fairly significant pain" and diagnosed Reynolds' condition as a "mild peroneal nerve compression syndrome, right knee." Dr. Breedlove again suggested that Reynolds have surgery. Reynolds again declined.

In May 1995, a year after he was first seen by Dr. Kirkland, Reynolds' pain was more intense, and he returned to Dr. Kirkland for another examination. Dr. Kirkland stated in his report:

I told Vern again today that he should be treated conservatively. This would be with anti-inflammatories and strengthening exercises. Again, he does have 1/4 inch atrophy on the right compared to the left.

However, Vern did not seem happy with what I told him. I told him that this is how I would approach his knee; and, in my opinion, I feel there is nothing else to be done. However, I told him that if he is unhappy with what I told him, he is free to get a second opinion; and I would welcome it. He does not complain of any real swelling, locking, or giving away.

I told him that it would be best to take the anti-inflammatories such as he is and continue with his exercise program. If he wants, I would be glad to see him back here in three to four weeks for evaluation.

Reynolds decided to see a third doctor, Dr. Riggins, who recommended "diagnostic arthroscopy with arthroplasty of the right patella." In layman's terms, as Reynolds put it, he would have his knee "scoped" and a "rough edge buffed down."

Reynolds was amenable to Dr. Riggins' recommendation, and he requested that Pirelli approve this procedure, which would be done by a Dr. Kimmelman. Pirelli refused. Reynolds filed an application for alternative medical care under Iowa Code section 85.27, and that is the basis of this appeal. Section 85.27 provides in part:

For purposes of this section, the 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, in writing if requested, 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 other care.

(Emphasis added.)

After a hearing on the application, a deputy industrial commissioner authorized the alternative medical care, stating:

Dr. Kirkland has no further care to offer the claimant.... Offering no care to claimant is the same as offering ... no care reasonably suited to treat the injury.... I think there's two theories that the claimant can recover alternative medical care here. First, that by offering no care ... Dr. Kirkland says there is nothing else to be done; the claimant is not receiving any care to treat his knee. No care is equal to care not reasonably suited to treat the injury. The second theory that the claimant can recover under is when Dr. Kirkland says in his May 31, 1995 report he is free to get a second opinion and I would welcome it. Dr. Kirkland doesn't specify another physician the claimant can see or make any referral. It clearly opens the door for claimant to get an opinion from another physician....

This decision is based on two alternative grounds: (1) the care provided by Pirelli was not "reasonably suited to treat the injury without undue inconvenience to the employee" as required by Iowa Code section 85.27; and (2) Dr. Kirkland, in effect, referred Reynolds to another doctor by stating to Reynolds that "he is free to get a second opinion and I would welcome it." (A referral to another doctor does not require the employer's consent or the industrial commissioner's approval, according to the commissioner's interpretation of section 85.27. See Antelman v. Holmes Oldsmobile Co., No. 988000, Iowa Industrial Commissioner (arb. dec.) (June 1993)).

As to the first basis for the decision, Pirelli contends that substantial evidence does not support the deputy's findings of unreasonableness and that the deputy erred in characterizing Dr. Kirkland's conservative care as "no care" at all. The second ground for the decision is erroneous, according to Pirelli, because Dr. Kirkland's generalized statement about seeing another doctor could not, as a matter of law, be considered to be a referral. We conclude that the deputy's first-stated ground is based on substantial evidence and was not affected by an erroneous application of the law. We therefore affirm the ruling on that ground and decline to address Reynolds' argument that he was referred to another doctor.

I. Scope of Review.

The Iowa Administrative Procedure Act, Iowa Code section 17A.19, governs our review of this agency action. Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 257 (Iowa 1996).

Our review is for the correction of errors at law, not de novo. Henkel Corp. v. Iowa Civil Rights Comm'n, 471 N.W.2d 806, 809 (Iowa 1991). The commissioner--not the court--weighs the evidence, and we are obliged to broadly and liberally apply those findings to uphold rather than defeat the commissioner's decision. Ward v. Iowa Dep't of Transp., 304 N.W.2d 236, 237 (Iowa 1981). On review, the question is not whether the evidence supports a finding different from the commissioner's but whether the evidence supports the findings the commissioner actually made. Id. at 238. In other words, the commissioner's findings are binding on appeal unless a contrary result is compelled as a matter of law. Id.

Long v. Roberts Dairy Co., 528 N.W.2d 122, 123 (Iowa 1995). In deciding whether substantial evidence exists, we view the record as a whole. Iowa Code § 17A.19(8)(f); Dunlavey v. Economy Fire & Cas. Co., 526 N.W.2d 845, 849 (Iowa 1995).

II. The Law.

Under the statute [on alternative medical care], the employer is permitted to choose the care. Iowa Code § 85.27; Harned v. Farmland Foods, Inc., 331 N.W.2d 98, 101 (Iowa 1983). By challenging the employer's choice of treatment--and seeking alternate care--[the employee] assume[s] the burden of proving that the authorized care is unreasonable. See Iowa R.App. P. 14(f)(5) (burden of proof rests on party seeking relief). Determining what care is reasonable under the statute is a question of fact. 1916 Op. Atty. Gen. 48.

Long, 528 N.W.2d at 123.

In Long we made it clear that as a general rule the employer, not the employee, is permitted to choose the medical care to be furnished. The burden is on the employee to show that the care chosen by the employer is not reasonably suited to treat the injury. Id. Reasonableness, of course, is a fact question. Id.

In Long the employer's doctor referred Long to an orthopedic surgeon, Dr. Reagen. When Long's pain persisted, Dr. Reagen recommended three options: (1) do nothing and continue with work activity as...

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